EXPOSING THE MONSTER: EFFECTIVE CROSS-EXAMINATION
No one has instructed more articulately or entertainingly on the subject of cross
examination than Irving Younger. No paper written on cross-examination can be
published without paying homage to him. Hence, my introduction:
IRVING YOUNGER'S TEN COMMANDMENTS OF CROSS-EXAMINATION
I. Be brief.
2. Short questions, plain words.
3. Always ask leading questions.
4. Don't ask a question, the answer to which you do not know in
advance.
5. Listen to the witness' answer.
6. Don't quarrel with the witness.
7. Don't allow the witness to repeat his/her direct testimony.
8. Don't permit the witness to explain his answers.
9. Don't ask the "one question too many."
10. Save the ultimate point of your cross for summation.
If you have not had the pleasure of listening to an Irving Younger lecture on
cross-examination, listen to it now. If you have not listened to it more than once, listen to
it again. It is repetition and his wonderful stories demonstrating each point which will
drill the Ten Commandments of Cross-Examination into your brain - so that they become
learned behavior.
PREPARATION IS KEY
After you have mastered Irving Younger's Ten Commandments of Cross-
Examination the next thing you must do is prepare. The most effective cross-
examination is due to one thing and one thing only - preparation. If you do not know
everything about your case, everything written or testified to by the witness who you are
questioning and everything you can reasonably find out about the witness, you will likely
not succeed in exposing the monster, a/k/a the truth.
a. Keeping the Juries' Interest
Juries expect drama in the courtroom. They have seen it every day of their lives
on TV: Perry Mason, Matlock, LA Law, Law and Order. Cross-examination is the
pinnacle of drama in the courtroom. Jurors expect it and you better deliver. If you do
not, you will suffer the consequences.
b. Outline Your Examination
Preparation of cross-examination should take as long as preparation of direct-
examination of your client. It need not be as long (and definitely should not be) but it
needs to be logical, concise and flowing. Cross-examine in a logical progression to a
specific goal.
The three best friends you have for preparing your cross-examination are: (I)
deposition testimony; (2) documents written or received by the witness; and (3)
demonstrative evidence. Always keep in mind that juries need to be entertained. They
like "the show" and the flash. The only way you can deliver is by preparation.
I use a method of preparation of the outline that works effectively for me. I use
large post-it notes and place them on the wall. Each sheet lists one area of potential
cross-examination. I write on the sheet all admissions I expect to get from the witness
during the questioning. I then write next to each (in a different colored marker) the
deposition testimony, the documents, or the testimony of others that support the
admission I expect to get from the witness. I then put it all in a logical sequence, opening
with something strong and closing with something strong. I ask other people who know
about the case, and some who do not, if a particular fact makes any difference to their
opinion one way or the other (or you can test it at a mock jury trial) and if I receive a
negative reply I strike it from the list of questions. However, I never substitute what my
gut tells me is important with what others tell me because no one knows the case better
than me.
c. What the Witness Expects
The witness you are about to cross-examine is either arrogant or scared to death.
They have seen the same television shows that the juries have watched: Perry Mason
getting someone to confess to murder on the stand; Jack McCoy getting someone so riled
up that they say remarkable things. The scared one will be afraid that he/she will look
like an idiot. The arrogant one will think he/she can do no wrong. Obviously, the
arrogant ones are the most fun to cross-examine.
Understand that not all witnesses adequately review their deposition testimony.
Some are too lazy; some are too busy; some are too arrogant; some just don't understand
the importance. You, however, prepared as you are, are none ofthe above.
Some witnesses review their deposition testimony to the point where it is
memorized and their answers in court to questions are spoken with the exact words as
used at the deposition. This is helpful to suggest that the witness is not being truthful.
Again, preparation is necessary so that you can immediately direct yourself to those
questions and answers in the deposition.
d. Control the Witness
Be courteous to the witness. This puts the witness off his/her game immediately.
Treat the witness with respect. Make the witness feel comfortable, as if you are having a
conversation. You are then the one in control.
Do not let a witness control you. You have the reins and the floor and, except for
the parameters established by the Judge, you can do whatever you want to do in whatever
way you want to do it. If the witness is not being responsive to the questions, seek
assistance from the Judge. Do not argue with the witness. Have the Judge instruct the
witness that he/she needs to answer the question presented. This makes it appear to the
jury that the Judge is on your side and that you know what you are doing. Do not "cop
an attitude" with the witness. Someone on the jury may identify with the witness or may
like them. You do not want to alienate a jury member.
Be firm but fair.
e. Using the Ammunition Effectively
Have the ammunition ready:, deposition cites, documents, prior statements. Have
them either enlarged, ready to be displayed on an Elmo, or at the ready in the computer.
Ask the question; get another variation of what was said before; and WHAM! - hit them
with a visual showing a variation:
Yes vs. no.
Maybe vs. definitely.
Answer to same question'before vs. answer to same question in court.
However, do not use this technique with unimportant issues: birthdates, hire
dates, supervisor's names, etc. Only use it when it means something - and it will not be
lost on the jury.
When you have all of your questions outlined go through them and cut out
unnecessary ones with surgical precision. The jury's attention span is only so long. You
can make your points without overkill.
f. Demonstratives Are Helpful
Consider using a magnetized board, one you can revisit/reuse during other parts
of the case, but most importantly in your closing argument. Pay attention to design and
color usage on the board.
If you are comparing other employees you can have columns for each employee
and, going through the qualifications of each, you can place a magnetized piece in the
column with the correct information. College degree: yes or no. Managerial experience:
yes or no. Highest rating on performance appraisal: yes or no. You can craft the board
to carry the message you want, already knowing the answers that will fill in each area of
inquiry.
In a sex harassment case, if notice is an issue, you can create a board with a
listing of all that the plaintiff did to report or what existed which would have provided
notice to the employer. If an organizational chart would be helpful you can use that and
place over the names of each who knew of the harassment a magnetized message, e.g.,
"knew".
If you are dealing with the sexual harassment policy of the employer and whether
or not it was followed (or ever has been), you can list the steps required by the policy and
go through each with the witness to show that the employer did not follow its own policy.
Be creative and visual. It is fun.
g. No Need to Cross-Examine Every Witness
There are times when you do not have to cross-examine a witness. It is hard for
an attorney not to ask questions. However, by not asking questions the jury may think
nothing they said had any significance; or, you can ask a later witness if they are aware
that the first witness testified contrary to their testimony.
At times one question can be as effective as many. After a witness has provided
damaging testimony that is consistent with everything he/she has said or written in the
past, consider the following question:
Q: Mr. Allen, I have just one question. Are you still
employed by Defendant Company?
Do not ask the same cross-examination questions of each witness. Consider:
Q: (to first defense witness) Ms. Allen, are you still
employed by Defendant Company?
A: Yes.
Q: Is this your only source of income?
A: Yes.
Q: Do you use the money you earn at Defendant Company
to pay your bills, to live?
A: Yes.
Sit down.
The next witness:
Q: Mr. Smith, are you still employed at Defendant
Company?
A: Yes.
Q: Do you have children.
A: Yes, I have two.
Q: Are you the sole breadwinner of the family?
A: Yes.
Sit down.
The next witness:
Q: Ms. Johnson, are you still employed at pefendant
Company?
A: Yes.
Sit down. Message has been delivered.
Make sure you know the answer before the question is asked. Wonder what
would happen if the witness is a trust fund recipient and only works for sport and only for
ethical companies? Not good.
BREAKING A COMMANDMENT
When, if ever, is it acceptable to break an Irving Younger Commandment? I can
only think of one Commandment which is breakable - "Do not ask a question you do not
know the answer to."
However, there are very limited circumstances in which it can be broken: when
the answer is so painfully obvious that anyone who answers the question differently loses
all credibility with the jury.
Consider:
Q: Mr. Owner, how long have you owned Defendant
Company?
A: 25 years.
Q: You are very proud of the work you have done at
Defendant Company?
A: Of course.
Q: When you meet people for the first time, would you
agree generally within the first five minutes of the
conversation there is discussion about what you do for a
living?
A: Usually.
Q. And you proudly tell those people who you are meeting
for the first time of your position at Defendant
Company?
A. Yes.
Q. When you see acquaintances who maybe you don't see
except every six months or so, you generally talk about
work and what you are doing there, right?
A. Yes.
Q: And when you see your close friends the conversation
always includes what is going on at work, right?
A. Yes.
Q. Does it surprise you to learn thai when my client meets
people for the first time, when he sees acquaintances
and close friends that he now has to tell them that he
has no job?
A. (who cares what it is).
In other words, crafting questions correctly to a person who has a job can aid in
the presentation and understanding by the jury of your client's damages. This is worth
breaking Commandment #4. But maybe it is not really broken because you do know
what the answer is unless the witness is just unbelievable and that is a fine result.
ENJOY THE EXPERIENCE
Do not dread cross-examination. Do not be afraid of it because you think it is the
unknown. It is not - provided that you follow Irving Younger's Ten Commandments of
Cross-Examination and prepare. Enjoy! There is nothing like a successful cross-
examination and the feeling you get when you sit down when it is completed.
Reprinted with permission from the January 2007 issue of ABA Journal.
Copyright 2008 (2013), ABA Journal. All rights reserved.
License # 89761
