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Litigation: Cross Examination - When the Truth is Told (Part 1)

Craig MartinThere is no part of a trial that is more exciting, risky and potentially rewarding than cross-examination. It is the only time when, as an advocate, we cannot completely control what will happen. Avoiding unhappy surprises and controlling the witness are essential to success.

We've had several cases settle during and immediately following the cross-examination of the other party's principal witness. .Effective cross-examination wins cases. Just as every witness is different, what's right in any cross will differ. Some cases can be won without requiring the judge or jury to find that the other side has lied - it's simply a David Bradfordmatter of stringing together the right admissions, which you have secured through documents and discovery - and telling a story with them through cross. Other cases will require that you win credibility battles and show that your adversary is either mistaken or has lied.

Recognizing that it is hard to generalize, this article touches on four aspects of cross-examination that cut across a spectrum of cases: Expectations and objectives, substantive preparation, impeachment and courtroom style.

Cross-Examination Goals: Leave Perry Mason at Home and Let the Jury Form Its Own Conclusions

One of the common misconceptions of effective-cross examination is that you are looking for a Perry Mason moment, when the witness cracks and admits that he lied or is at fault. Even if you need to destroy a witness' credibility, those who attack frontally, with questions such as, "Isn't it true that you lied when you told my client at your September 17, 2007 meeting that you had a deal?" will be invariably disappointed with the answer.

Rather, effective credibility-killing technique generally involves death by a thousand cuts, with the jury forming its own conclusion: "You met with my client on September 17, 2007, didn't you?" "That meeting was in your office, wasn't it?" "You considered it an important meeting, didn't you?" "But you don't have any notes of your own from that meeting, do you?" "You didn't write any letters summarizing what happened at that meeting, did you?" "In fact, as far as you know, in the whole world, there was only one written document you have seen that refers to that meeting, isn't that correct?" "And that one document is a letter that was written by my client and dated September 18, 2007, correct?" "You've looked in your files, and that letter from my client is the only document you found that refers to this meeting, correct?" "And my client's letter was written the very day after you met with my client in your office, wasn't it?" "You received that letter from my client didn't you?" "You received it within days of the meeting, didn't you?" "And in that letter, my client wrote that he was confirming your deal, didn't he?" "Would you read to the jury what he wrote?"

Every question must be carefully constructed to leave no room for argument or evasion. It can leave room for equivocations and denials of knowledge, only if they will ultimately make the witness look evasive without allowing escape from the ultimate point. For example, if the witness says, "I don't know if there are other documents referring to the meeting," you can say, "You cannot identify any such document, can you?" "You haven't seen such a document produced in the discovery in this case, have you?" "And if there was such a document, you'd want the jury to know about it, wouldn't you?" "And you'd expect that before this trial is over, your counsel would bring that document to the attention of the jury, wouldn't you?"

Substantive Preparation: Know Where Every Fork in the Road Leads

Substantive preparation is the key to effective cross-examination. The adage about not asking a question without knowing the answer is sound advice. For every question, you should have a document, deposition transcript or other definitive source of proof with which you can impeach, if the witness does not testify as you expect.

Effective preparation means the question must be carefully tailored to your impeachment proof. If the witness wrote in a document, "We are concerned about the cost of this deal," your question should be, "In fact, on October 18, 2009, you specifically wrote to your own deal team, 'We are concerned about the cost of this deal,' didn't you?" By contrast, if you asked "On October 18, 2009, you were concerned about the cost of this deal," you invite an explanation: "I may have been concerned initially, but after I wrote my deal team, they assured me the price was right." The witness may get that explanation out anyway, but if he does it in response to your question, you have lost control.

Proper preparation is painstaking. You need to think about how a witness may wiggle out of any question - and be prepared for where you will go if he or she does fight the admission you seek. Witnesses can lose a great deal of credibility fighting points they are ultimately forced to admit.

There may be moments when you cannot be sure, before trial, what path a witness will take in response to a question. Mark those as "forks" in your preparation - and be prepared for where the details of your line of questioning will go, under either outcome.

You should also consider, before trial, what happens if a witness claims his or her prior testimony or written documents were simply mistaken. What further proof do you have, other than that they said it, that they got it right the first time? Know in advance, what you will do, if you get an unexpected denial to any question.

Identify the three or four key points of your case and the best proof of each. If you find the cross is slipping or the witness is scoring points, these key points and proof are your safety valve to put it back on track: "Mr. Smith, whatever you may recall about these discussions, you don't deny that on September 4, 2000, you wrote that 'The sale process was fair,' do you?"

Part two of this article will discuss effective impeachment and courtroom style.

Craig C. Martin and David J. Bradford are Co-Chairs of Jenner & Block's Litigation Department.

Read Martin and Bradford's previous column. Read Martin and Bradford's next column.

Craig C. Martin

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David J. Bradford

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