In our last article on cross-examination, we discussed substantive preparation and expectations for cross-examination. In this article, we discuss effective impeachment and courtroom style.
We focus our impeachment discussion on impeachment by documents, as opposed to impeachment by prior inconsistent testimony. The latter requires that you establish that the prior testimony was sworn and at a time when the witness' recollection of events was better because it was more proximate to the events at issue. With the advent of video, prior testimony impeachment can often best be accomplished by playing the tape. Some attorneys like to have the witness read their prior answer, while other attorneys prefer to read it themselves. There is risk that the witness can add emphasis if he or she is allowed to read the answer. But when the answer contains expletives or embarrassing language, it is most effective to have the witness read it. It can also be more dramatic.