Cross-examination Preparation #2 - Make your points with baby steps

The witness won't agree to the big points, so break them down.

In the previous episode, we discussed how cross-examination differs from the direct examination. The difference really springs from one fundamental. The witness in a cross is not your friend. You don’t prepare with the witness. You treat every question as if the reply could blow up in your face.

This difference tells us to follow these rules, which appear in Irving Younger’s delightful video, tagged in the previous episode.

1.     Keep your questions short. There is less chance for the witness to disagree with your premise.

2.     Use simple language. There is less chance of confusion – yours or theirs.

3.     Always use leading questions. The witness should be limited to a simple agreement with your premise. It discourages the witness’ taking control of your examination.

4.     Ask questions that you know – absolutely know and can prove – the answer is ‘yes’. There are exceptions, such as when you don’t care, you set up a future question, or you are desperate for the answer. But the rule remains, know the answer before you state the premise.

These are all techniques (Commandments, per Judge Younger) you should master. They lead to the technique of today’s post. Let’s state this as a ‘do,’ and a ‘don’t’.

Do: make little, tiny, itsy-bitsy points.

Don’t: try to win your case in one question or sequence.

In a sports analogy, win the game incrementally, not with one kick, swing or crushing tackle.

What do we mean? In direct examination, you can ask your witnesses to explain why they acted as they did. Their explanations advance your case. You know what they will say, at least what they told you they would say during preparation.

In cross-examination, you can’t do this. You don’t trust them to answer as you hope. So, you put little – simple - propositions to them, ones they can’t haggle with. The sum total is that you derive an explanation of why they acted or didn’t act as you suggest.

Let’s bring back the Three Bears to demonstrate this. Note that the Five-and-Out Technique remains intact, except without the BOQ (broad open question) to start the sequence.

HL: Baby Bear, I will ask you about your entry into your home that day.

Q1: Your father opened the door, right? Yes.

Q2: To see what was there, right? Yes. [Note: grammar be damned. You must be short and clear, not grammatically correct.]

Q3: Because he didn’t know. Am I right? Yes. [Note: be careful to add ‘am I right’ at the end of negative propositions.]

Q4: And you were right there with your father, right? Yes.

Q5: And you were curious about what you would find, right? Yes.

Eventually, the ‘yes’ answers to your short questions will lead to the conclusion that Baby Bear was not afraid, which was the point you set out to make.

What you don’t do is jump right to the punchline. Like this:

HL: Baby Bear, I will ask you about your entry into your home that day.

Q1: When you entered your house, you were unafraid, am I right? That’s not true! I was terrified about what could be lurking behind the next corner because …

You take the long, circuitous route because there is less risk of something going wrong. More certainty of a successful outcome. As Irving Younger shouted in his Youtube video, and I paraphrase, “Don’t ask if you aren’t sure what the witness will say!”

The hard part for you is to think of what big point you want to make and then break it into all the little points that get you to that conclusion. For each of those little points, you should have proof that your premise is correct at your fingertips in case the witness goes off-script, disagrees, or hems and haws. That is the moment you can impeach. The witness will recognize this and stay on script to avoid the embarrassment of the impeachment crisis.

Exercise: For the Goldilocks v. The Three Bears case, dream up a few points you want to make from Mama Bear. What little points can you list that get you to those bigger conclusions?

If you want more detail and exercises, consider Examinations in Civil Trials – the Formula for Success, available from Irwin Law here, or the self-published handbook, Outlining: How to structure Examinations in Civil Litigation, available from Amazon here.