Cross-examination Techniques #1 - Call a time-out

It's Show Time. What's your first move?

We have already covered the basics of cross-examination in the preparation set of episodes. Most of the success of a good cross comes from preparation.

You learned these techniques earlier:

·        Make only small points. Points you can prove if the witness tries to disagree or dodge.

·        Have your impeachment records close to hand. 

·        Put those points into five-and-out sequences.

·        Assemble those sequences in an outline that allows you to build your own structure, brick by brick. 

Yes, it can take a very long time to prepare for a very short cross-examination.

But cross-examination takes place live, not on paper. This series of episodes on Cross-examination Techniques will focus on what happens during the cross. What to do, and how to react when things happen that you did not anticipate. Each episode will cover a single technique. Cumulatively, the series should help you improve your skills as a cross-examiner.

The first technique to learn and adopt is the simplest. In every case where your cross will start immediately after the direct examiner sits down – every one, Counsellor – you should say the following words. "I need a few minutes."

It doesn't matter what dagger the witness just threw at your client in the direct, how much ammunition you have stored up, whatever great question you want to hurl at the witness. Take a few minutes and think.

Use that time to take a breath, examine your notes, re-order your outline, and prepare your first sequence of five-and-outs. That wonderful sequence your instincts screamed at you to use to eviscerate the witness? It may not seem so brilliant on second thought.

And that's the first technique. Use your wits in the calm that the decision-maker allows you – and you will get that opportunity to gather those wits. Because one secret of litigation is that the decision-maker wants you to ask smart, focussed questions. If a few minutes of break time allows you to do your job more effectively, that helps the decision-maker, too.

Here is a short (4.5 min.) podcast to discuss the broader application of this technique.

In the next episode, we will address the first subject you broach when your cross starts.