This article was published in the Fall 2015 edition of the Oregon State Bar's Litigation Journal.
Cross-examination is perhaps the most challenging aspect of our trial presentations. Unlike Raymond Burr in Perry Mason television serials, it’s fair to say that we seldom, if ever, force the opposition to concede our claims or dismiss their claims as a result of brilliant cross-examination.
Spend an afternoon at one of the state or federal courthouses watching cross-examinations, and you are likely to witness a number of the techniques listed below, none of which are
particularly effective. These traditional techniques and then a proposal for an alternative approach (“remember your mother”) are discussed below.
1. Ineffective Cross-Examination Techniques
Assume for purposes of illustration that the witness to be examined is an 85-year-old grandfather who claims that on a dark and rainy night at a poorly lit intersection, he witnessed your client’s car (which was attempting to make a left-hand turn in the intersection) run into the plaintiff’s vehicle (which was proceeding through the intersection in the opposite direction). Your client admits that he was trying to make a left-hand turn, but that he simply was in the middle of the intersection with his left-turn indicator on, and that the oncoming plaintiff’s vehicle crossed the centerline and ran into him.
a. Useless Niceties.
Many cross-examinations begin with “useless niceties” that rob you of the opportunity to capitalize on the “golden moments” as you begin your cross-examination. When one begins a cross-examination, the fact-finder (be it judge or jury) will be paying the most attention. These golden moments should not be squandered.
Useless niceties consist of questions and comments like these:
“Good morning, Mr. Murphy. How are you doing this morning?”
“Mr. Murphy, I’d just like to ask you a few questions. Could you give me your attention for a little while?”
“Mr. Murphy, beautiful weather we’re having, aren’t we, for a state that’s noted for its rain?”
b. Repeating Direct Examination.
After starting the cross-examination by squandering golden moments with useless niceties, the examiner then proceeds to repeat portions of the direct examination, thereby reaffirming and reinforcing the points made on the direct examination—apparently believing that by repeating the direct examination a second time, it will seem less credible. But this tactic almost never works.
“You testified that my client’s vehicle crashed into the plaintiff’s vehicle while trying to make a left-hand turn, didn’t you?”
“You claim that my client is the one at fault, don’t you?”
“You claim that you had a clear and unobstructed view of the accident?”
Then, after useless niceties and repeating the direct examination, the cross-examiner begins begging the witness to change his story:
“You can’t be sure that my client’s car hit the plaintiff’s car first, can you?” (The witness asserts that he is sure, despite the begging.)
“The plaintiff’s vehicle could have just as easily veered into my client’s lane by three or four inches as my client could have veered into the plaintiff’s lane, right?” (The witness denies that this happened.)
“It all happened so fast, you can’t be absolutely certain that my client’s vehicle was the one that went over the centerline first, can you?” (The witness is certain.)
d. Pulling Out the Hatchet and Chain Saw.
The useless niceties, repeating of the direct examination, and begging are then followed by what I call “pulling out the hatchet and chain saw.” (Just like Freddy Krueger and Jason from Nightmare on Elm Street and Friday the 13th or the demented son in Texas Chainsaw Massacre.)
You are going to take no hostages. You are going to use a “hatchet” and a “chain saw” to demonstrate that this elderly gentleman is not only mistaken, but also a liar—that he must have some improper motive, such as an economic interest with the plaintiff.
You pick up the hatchet and start the chain saw. You are ruthless. You maim him. You slash him. You show no mercy. You then sit down and your client leans over and tells you what a marvelous job you did.
Of course, your client is wrong. Your hatchet and chainsaw massacre may have bloodied the courtroom, but it also completely alienated the fact-finder (judge or jury), who was naturally sympathetic to an elderly gentleman undergoing the foreign experience of testifying in a courtroom and being subject to a cross-examination by an experienced lawyer.
Most of us realize over time that these types of hatchet and chain-saw cross-examinations are more likely to hurt our client than persuade the fact-finder. It’s surprising, however, how long it takes many of us to put away the hatchet and chain saw and trade them in for a scalpel. Admittedly, we are misled for a while by the positive comments of our clients, who inevitably compliment us after using the hatchet and chain saw. But the compliments are soon forgotten when the fact-finder comes back with a disappointing verdict or judgment.
2. Conduct Your Cross-Examination as Your Mother Would
Mothers love us regardless of our foibles. Perhaps this underlying affection explains why the questions of a mother are so effective. Mothers do not use hatchets or chain saws; they use a scalpel to get at the truth.
a. Childhood Experience.
Most of us have had the childhood experience as an underage adolescent of having our parents leave us at home alone for the weekend. We are given strict orders that no friends are to visit, particularly friends of the opposite sex. We are instructed that there is to be no drinking, no cigarette-smoking, no loud music—yet inevitably, there is.
Try as we might to hide, destroy, or mask the evidence, inevitably our parents, upon returning home, talk with the elderly neighbor who sits in her front window and watches your home about what she saw while they were gone. You then come home from school and undergo the following cross-examination by your mother:
“Our neighbor, Mrs. Smith, was home looking out her window last Saturday night when we were out of town. Did you know that?”
“Cars were parked in front of the house?”
“Cars that belong to your friends?”
“There was loud music?”
You answer “no” to the first question and then “yes” to her questions like a lap dog barking for snacks. Her cross-examination is effective without being mean-spirited.
b. Cross-Examining the Witness as Your Mother Would.
You laid the groundwork for trial at the elderly gentleman’s deposition by asking questions as if you were conducting a cross-examination (using leading questions) to ensure that you would get the same answers at trial. Applying the same loving yet direct technique as your mother used on you, you now begin your cross-examination of the gentleman:
“It was dark?”
“It was raining?”
“The intersection was dimly lit?”
“You can’t see without your glasses?”
“Your glasses were wet from the rain?”
“Your glasses were ‘fogged up’ at times?”
Plus, your deposition work has allowed you to add a distraction to the cross-examination of Mr. Murphy:
“Let’s talk about your terrier’s attempt to eat the remnants of a fast-food wrapper . . . you understand . . . ?”
“You were walking your terrier?”
“Your terrier once ate the remnants of a fast-food wrapper . . . ?”
“It made her ill . . . ?”
“Your terrier had a wrapper in her mouth that night . . . ?”
“You were concerned that she would be ill?”
“You love your terrier?”
“You were attempting to pull the wrapper from her mouth?”
“That’s when the two cars approached?”
“You were bent over?”
“You were facing away from the intersection?”
“You did not turn around until you heard the crash?”
Next time you have an opportunity to conduct cross-examination (or, for that matter, conduct a cross-examination during deposition in preparation for a trial cross-examination), consider putting away the hatchet and the chain saw and trading them in for a scalpel. After all, Aristotle recognized that “to persuade” we must be “liked.” We are more likely to be “liked” without the hatchet and chain saw.
Conduct your cross with the skill, care, and affection of your mother when she cross-examined you as an adolescent. Your client may not be as effusive with his or her praise after the cross-examination has been completed. But instead of running the risk of alienating the jury by filling the jury box with blood, gore, and limbs, you are likely to find that you have persuaded the jury to your point of view. Most clients would trade an opportunity to compliment us on a ruthless cross-examination for a successful outcome.