This article was published in the Winter 2019 edition of the Oregon State Bar's Litigation Journal.
The comparison of the general rules for conducting direct examinations and cross examinations exposes a common theme. Whatever the rule that applies to direct examination, usually the directly opposite rule applies to cross-examination.
This contrast is not surprising. After all, direct examinations generally consist of eliciting helpful information from cooperative witnesses whose credibility we are attempting to bolster. On the other hand, on cross-examination we are generally attempting to elicit helpful information from an uncooperative witness whose credibility we are attempting to impeach.
A review of six general rules of cross-examination and comparing those rules with comparable rules for direct examination will demonstrate the contrast.
1. End strongly, start slowly
A good direct examination, redirect examination, or recross-examination should start and end strongly (taking advantage of the persuasive techniques of primacy and recency). Similarly, cross-examination should finish strongly, ending with the traditional "zinger," a point that is a guaranteed winner in that it is absolutely admissible, is central to your theory, evokes your theme, is undeniable, and can be stated with conviction.
In direct examination the same kind of impact can be made with a "zinger" in the opening line of questions.
In contrast, however, a cross-examination should usually not begin with a "zinger." Why? Because employing an initial "zinger" will alienate the cross-examination witness and make it impossible to draw from that witness helpful points to generally bolster your case (before turning to hostile questions and ending with a "zinger").
Starting slowly on cross-examination will allow you to take full advantage of information available from the cross-examination witness before you allow your relationship with him or her to deteriorate into alienation.
First, you can elicit friendly background information that is not threatening, but that may support your theory and theme, such as the achievements and extraordinary training of a defendant who you are attempting to show knew full well what he or she was doing at the time of the complained-of conduct.
Second, after exhausting the friendly information, you can ask questions to build the value of your case by providing affirmative information that will fill in gaps and will be more persuasive coming from an adverse rather than a friendly witness.
Finally, uncontroverted information that is well documented or well settled can be solicited before resorting to your first challenging information questions and finally your hostile questions to the cross-examination witness.
During direct examination, in the interest of assisting your witness and drawing a clear, easy-to-follow picture for the fact-finder, the examiner works hard to make it clear where he or she is going. In contrast, on cross-examination, making it clear to the witness where you are going will only encourage the witness to become evasive, hostile, and argumentative.
For instance, if you are trying to make the point that the witness should have understood the contract or letter the witness read, and you ask the question directly, you will probably not get the answer you want. On the other hand, you can achieve the same goal by indirection. Before concentrating on the simple language of the agreement or letter that the witness has admitted receiving and reading, you can establish the witness’s extensive experience, achievements, and laudable business practices through a series of questions with which the witness will have to agree and that will lead to only one conclusion concerning the witness’s understanding of the agreement or letter.
Questions that could be asked to set up the indirection:
- You have more than 30 years of experience negotiating contracts, don’t you?
- You’ve been highly successful in negotiating successful contracts over your career?
- You regularly hire lawyers to assist you in reviewing important documents?
- To the extent that you don’t review important documents, you have someone on whom you can rely review them?
- You insist that important and crucial points that are discovered in documents are brought to your attention?
- It is this kind of detailed, cautious, and deliberate procedure that has led to your success?
Having established a general practice of careful reading of documents, while at the same time flattering the witness’s achievements and work habits, will allow you by indirection either to obtain the admission or to frame a question concerning understanding of the agreement or letter that will make apparent the answer you should have gotten. If you had flagged in advance where you were going and why you were asking the background questions, the result might have been quite different.
3. Details first
Often in direct examination the most effective procedure is to cover details only after the witness has described the "action" of his or her recollections. Put differently, it is generally prudent not to interrupt the action of the witness’s story on direct examination with detailed questions about distances, thought processes, and emotional reactions until the action has been told and completed in a series of frames where each point adds an additional action step and captures the fact-finder’s attention.
In contrast, on cross-examination the details must be elicited initially so that you can use them to "herd" and "corral" the witness to provide you with the admissions you need. Until the factual background has been laid by the adverse witness that limits the routes of escape and explanation, cross-examination is often ineffective.
4. Scatter circumstantial evidence
In argument and on direct examination, assembling circumstantial evidence often makes the contention of the proponent persuasive. If the contention of the proponent is that someone was late for an appointment and therefore negligent in his or her driving, assembling circumstantial evidence about the importance of the appointment, the time of the appointment, the time of the accident, the speed of the car at the time of the accident, and the conduct after the accident, including an immediate phone call to the location of the appointment, supports the persuasiveness of the contention.
In contrast, on cross-examination assembling circumstantial evidence to support a contention will make the contention obvious to the adverse witness and result in encouraging that witness to be evasive, hostile, and argumentative. Thus the circumstantial evidence points should be separated and scattered so that they are obtained either from different witnesses or at different points in the examination so that your ultimate objective and contention is not obvious.
5. Short questions and short answers
During direct examination the examiner strives for short questions and long narrative answers by the witness. This allows the attention of the fact-finder to focus on the witness, not the examiner. Open questions are used. The witness is left unfettered to improve his or her credibility.
In contrast, allowing the adverse witness to launch into long answers and explanations will doom the cross-examination. The questions should be not only short, but also closed-ended to control and limit the adverse witness’s response. By inching along and adding only one fact at a time, the examiner can control the adverse witness and give the adverse witness little room for argument and evasion.
6. Attention on the cross-examiner
As referred to above, during classic direct examination, the examiner attempts to place the attention of the fact-finder on the witness. The examiner simply shepherds the witness in telling his or her story in a natural, credible, and easy to follow manner. In contrast, on cross-examination, the attention should be on the cross-examiner. Cross examination is often the opportunity for the cross-examiner to argue his or her themes or theories by asking questions the answers to which are often irrelevant. By raising impeaching, contrasting, and contradictory points, the examiner brings attention to himself or herself and thereby exposes the weakness of the recently conducted direct examination.
As with all rules, there are always exceptions. When in doubt, however, we may do well in cross-examination to simply conduct ourselves in a manner opposite to how we conduct ourselves in direct examination.