This article was published in the Summer 2015 edition of the Oregon State Bar's Litigation Journal.
Cross-examination can be one of the most challenging yet satisfying portions of any trial. There is a moment in time at the end of every cross-examination during which everyone in the courtroom, including the examiner, knows whether the cross-examination was a success or a failure. That moment in time comes not at the beginning of the examination but at the end.
I. The Importance of Ending Strong
When the witness falls silent after answering your last question, the moment should be memorable.
Primacy, recency, and repetition are the lawyer’s tools. The power of recency (that we remember well what we hear last) should never be underestimated by the cross-examiner. As you retake your seat after having completed the cross-examination, everyone in the courtroom will remember the last line of questions and answers from the cross-examination, and whether the witness was “gored” or you were.
To a large degree, we will be protected from failures throughout a cross-examination if we are able to end strong. But we must end strong.
II. Don’t Leave the Last Line of Questions to Chance
Realizing the importance of the last line of questions of any cross-examination, you should select your strongest and most certain point as the last point.
It is essential that the point be an important one. It should be central to your theme. It should be worth remembering. Don’t waste this golden moment on trivia, minutiae, or quibbling over the unimportant.
The last point of a cross-examination should be undeniable—a line of questions from which the witness cannot escape. Such opportunities are often offered by an inconsistent statement or a document or testimony that directly contradicts the witness. Examples are:
- the expert’s testimony in another case in which he or she took exactly the opposite position;
- the deposition testimony of a fact witness in which the fact witness testified on a key point 180 degrees differently from the way in which the witness is testifying now; and
- a contemporaneous document or testimony of another witness that flies in the face of the witness’s testimony, directly contradicting it.
This is no time to leave admissibility to chance. Be certain that the deposition excerpt, inconsistent document, or earlier inconsistent statement is absolutely admissible. This is the one part of your cross-examination that deserves extra attention, extra research, and removal of any doubt as to its admissibility. Be prepared with authorities or a slip memorandum to support admissibility if there is a risk of any challenge.
The last line of cross-examination questions must be planned, certain, and deadly. Spontaneity and flexibility are important in cross-examination. Sometimes the most important nuggets from an adverse party’s testimony can be derived from an unguarded or intemperate comment made during the discomfort of a cross-examination. But the last line of questions is not the portion of the cross-examination to leave to chance or inspiration.
The end game of any effective cross-examination is to save the best for the end. Your cross-examination will be judged in those brief moments of silence as the cross-examination witness utters the last words of his or her last answer. You and everyone else in the courtroom will know whether you or the witness prevailed. And at that moment in time, you will reap the benefits of end-game cross-examination.