Tips on Cross

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DAVID BOIES’ ADVICE ON CROSS-EXAMINATION

  David Boies once again proved his preeminence as a cross-examiner in California’s Proposition 8 case. After driving out two of the other side’s experts when he took their depositions, Boies then turned the one remaining expert into his with his cross-examination at trial. How does David Boies over and over again conduct devastating cross-examinations? [...]

NEW EDITION OF CROSS-EXAMINATION HANDBOOK

The Second Edition of Cross-Examination Handbook: Persuasion, Strategies, and Techniques has just been published by Wolters Kluwer. This new edition continues its straightforward step-by-step instruction combined with examples from illustrious trials including the Zimmerman trial. The new edition adds, among other topics, visual cross-examination, social media impeachment and the interplay of discovery and cross. Also, [...]

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 [...]

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 [...]

WHAT’S IN A QUESTION?

All questions are not created equal. What we are trying to accomplish by questioning determines what questions we ask, and how we ask them. “Have you stopped beating your wife?” is not a question designed to elicit information. Socrates asked questions to make his listeners think, and his methodology led to countless generations of law [...]

THE THREE I’S OF IMPEACHMENT CROSS-EXAMINATION

It may be somewhat counterintuitive, but the impeachment of a witness is not the primary goal of cross-examination. The primary goal of cross-examination is to persuade the jury to endorse your case theory. Impeaching opposing witnesses contributes to proving your case theory only indirectly. It tends to encourage the finder-of-fact to reject the opposing side’s [...]

HOW NOT TO IMPEACH WITH DOCUMENTS

I (Bob Dekle) recently had the privilege of watching a very competent prosecutor conduct a post-conviction evidentiary hearing. The issue was mental competence, and the state’s expert had testified quite convincingly on direct examination. The defense attorney arose and began a performance which can only be characterized as a case study in how not to [...]