CROSS EXAMINATION FOR FUN AND PROFIT 
Monday, April 13, 2015, 09:47 PM
Posted by Administrator
I am not a good cross examiner. If you are a witness at a hearing or trial and you see me get up and approach the podium, ready to cross examine you....don't be concerned. I can't question my way out of a paper bag. So, don't worry. Say whatever comes to mind....it will be fine. I promise. What I am going to write here is based totally on what other people....much better at cross examination than I am... have told me:

1) Don't get up. Don't start. You will gain nothing by cross examination, you will only crap up your case. So, when the judge tells you...after the direct examination is done....that it is time for your cross, say to him or her: "No. But thank you."
2) If you do get up to ask questions, remember: Don't ever ask questions you don't know the answer to....don't let yourself be surprised. You will crap up the case if you do.
3) If you do get up and ask questions....STOP. Sit down. Face facts: You are doing your client no good. You are crapping up the case.

So, ignoring the above, you've stood up and started asking questions you don't know the answer to and, since the idea QUIT WHILE YOU'RE AHEAD doesn't apply in the law business....your forge ahead. Why? What are you trying to accomplish?

I) To tell the story in your (the lawyer's) words, interrupted from time-to-time by the witness assuring you that you've got it right. Q: "So, you drove up in your car, right?" A: "Yes." Q: "And you walked into the house, right." Yes You start with easy "yesses", trying to get the witness used to saying "yes" and, when you believe they are used to saying "yes", you ask the payoff question: Q: "And, then you shot her, right?".

And, if you are very, very good, as good as Perry Mason was 50 years ago........you will get a "Yes".

II) To get the witness to answer questions quickly without thinking. Ask easy questions.....try to get the answers to come fast under the dual theories that a) It takes a moment of thought to come up with a lie and b) the first thing that pops into your head is probably the truth. Q: "So, you drove up in your car, right?" "And you walked in the front door?" "And you put the bread you bought in the pantry?" "And then you got a phone call from your mistress?" A: "Yes."

Remember the TV psychologist test where you are supposed to say the first thing that comes into your mind after he/she says a word? "Black"...."White". "Fat"...."Thin". "Tara"...."Girlfriend". "Gun"...."Mine". Which is why we don't EVER say the first thing that comes into our mind. But, put somebody on the witness stand in a courtroom and ask the right questions and....maybe you'll get lucky.

Cross examination is usually stressful for the witness (and the lawyer)....it seems that the quicker he/she answers the questions, the sooner he/she will get to leave (and walk away from the stress of the situation). The desire to answer quickly sometimes leads to the reality that the witness is answering stupidly. (Sometimes not.)

But, really....thinking back and considering how your cross examination actually went, you realize you should have left well enough alone and never gotten up. This is how it should have gone: The Judge: "Your witness, Mr. Duhl." Me: "I don't need anything from this witness, your honor. But, isn't it time for our lunch break?"
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