Don’ts for Cross-Examination

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RELAX – “IT’S EXRAORDINARILY RARE TO LOSE A CASE ON CROSS-EXAMINATION” BUT EXCEPTIONS EXIST

Observations in The Elements of Trial by Friedman and CummingsIn their new book TheElements of Trial (Trial Guides 2013), Rick Friedman and Bill Cummings make a point that we make in Cross-Examination Handbook that a well- planned cross-examination presents little risk to the cross-examiner. We point out that cross-examination is the examiner’s opportunity to elicit [...]

CROSS-EXAMINATION VIDEOS

Ann Murphy’s Gift of Cross-Examination VideosProfessor Ann Murphy (pictured here) has compiled a collection of videos and photographs that can be used to enliven any class presentation on evidence or cross-examination. This collection is valuable not only for evidence and trial advocacy professors but also for attorneys and law students who want to watch how [...]

SUICIDAL REDIRECT EXAMINATION

There’s an old saying that cross-examination is more often suicidal than homicidal. The saying refers to the fact that many lawyers do irreparable harm to their cases by conducting an inept cross-examination. Sometimes the witness will commit suicide by blurting out things far better left unblurted. When this happens, the cross-examiner should abandon the role [...]

LEADING VERSUS LOADED

According to the state’s factual theory in the Lindbergh Kidnapping Case, the kidnapper used a homemade ladder to climb into the child’s second story window, and the ladder broke when he climbed back down the ladder with the added weight of the child. The child died from blunt trauma to the head, and it was [...]

ORGANIZING A DYNAMIC CROSS-EXAMNATION

Do’s and Don’ts for Organizing a Dynamic CrossAre the jurors following your cross-examination? Or, are they lost? Is your cross-examination easy to comprehend? Or, is it just a jumble? Is the structure of your cross achieving your purpose? Or, is it just rehashing the direct? While a great deal of attention in trial advocacy texts [...]

THE CROSS-EXAMINER’ DEMEANOR – DO’S AND DON’TS

Don’t Show the DamageYou asked the “Why” question on cross-examination. And, you just learned why it is a commandment that you should never ask a “why” question on cross. You learned that you opened the door for the expert witness who is now expounding on the other side’s case theory. You wish you could go [...]

CROSS-EXAMINATION – THINK BIG

No cross-examination is more ineffective than one that dwells on minutia. A cross that focuses on inconsequential matter neither builds the cross-examiner’s case nor undercuts the other side’s case. It serves no purpose. It can be tedious. And, it can damage the credibility of the cross-examiner. Henry Miller, a seasoned trial attorney put it this [...]

LAWYERS’ DUMB QUESTIONS

Here is some more on the subject of questioning. Lawyers ask some dumb questions on cross-examination. “Why?” being the dumbest of them all because it opens the door for the witness to say almost anything. The following quotations are taken from official court records across the nation, showing how funny and embarrassing it is that [...]

3rd ROOKIE MISTAKE OF CROSS-EXAMINATION: REPEATING THE DIRECT

Irving Younger’s 7th CommandmentIt is probably the most common rookie mistake - the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .” The error is grievous. It violates Irving Younger’s 7th commandment: “Don't allow the witness to repeat his direct testimony.” Younger’s commandment directs [...]

2ND ROOKIE MISTAKE OF CROSS-EXAMINATION: BEING WITHOUT PROOF

You Know the Cross-Examiner is a Rookie When . . .A lawyer should never attempt to impeach a witness with a prior inconsistent statement if the prior statement cannot be proven. Some lawyers ask about a prior statement without proof of the prior statement in the hopes that either the witness will admit it or, [...]