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CROSS-EXAMINATIONJudith A- Livingston

Kramer Dillof Livingston & Moore

CROSS-EXAMINATION IS THE EPITOME of the art

ofadvocacy. Ifone is talented with the pen, and well versedat plot development, heor she can author a persuasiveopening statement. Asalesman can give a fine closingargument because ofhis orher ability at persuading. Directexamination can beeffectively f^hioned throughstraightforward diligence. Cross-examination stands alone asthe art form of the trial advocate.

Time and again we utterthat phrase "a lawsuit is asearch for the truth." In order to search effectively andpersuasively, it is a fine cross-examination that will bringabout that truth.

PREPARATION

Long before rising toattack a witness based onanswersgiven to direct examination, a plan for cross must bedeveloped. It goes without saying that a thoroughknowledge (and memory) ofthe facts ofthe case, the factualdangers and the bacl^round of the witness, are necessaryfoundation elements.

Alaw)'er cannot effectively discredit a witness withoutknowing the ins and out's of the subject matter. The extentand manner ofimpeachment ofthe witness will vary fromcase to case, but it isimportant to know as much about thewitness's background long before his orherday in court.Compile the data onnegative information that you maywant to use to impeach the witness. Gather deposidon andtrial testimony thatthewitness has given. Review it indetail, looking for contradictions from case tocase andbetween those prior cases and what the witness will besaying in the case athand. From those transcripts, gatherinformation for a collateral attack: how often has the wimesstestified, how muchtime does the witness spendinlitigation related activities, what percentage ofincome isgenerated from testifying and do the witness's connectionsshow a bias, as examples.

In order to be useful these transcripts must beorganizedin a readily accessible fashion. You should know before thewitness takes the stand what transcriptquestionsyou arelikely to utilize and have those quotes available atamoment's notice. So often, the skill of an effective cross

comes not only from the quality ofthe material used, butthe smooth flow of interweaving outside relevant materialsinto the questioning. Ifyou are fumbling while trying tofind the transcript materials and wasting the jury's time, youare likely to ruin the impact ofthe attack. Instead ofmakingasignificant point, the jury and judge might just think youare unprepared.

When dealing with medical issues, a thorough search oftheliterature is always anessential component ofpreparadon. Havereadily available those textbooks and ardcles that support yourposirion. When there is an issue ofcredibility between theplaintiff and amedical wtness, using an arsenal from the

medical literature as support for your posirion can proveinvaluable. The use ofmedical writings can convince thejurythat it isnotonly you andyour side thatputforth a certainposition, but theentire medical community.

THE SCOPE AND APPROACHBefore standing up and beginning any cross, the lawyer

must have a rather firm ideaof what he or she expects tohave established bythe time the examination ends.

As a sample list ofcross-examination goals, consider thefollowing:

1. Discredit thewitness's qualifications.

2. Discredit the witness's knowledge of the facts of thecase.

3. Show thewitness's bias for the defense or against theplaintiff.

4. Impeach thewitness's credibility (i.e., from priortranscripts or his or her writings)

5. Use thewitness to bolster the plaintiff's case.

6. Show that the basis for the witness's opinions isinvalid.

7. Use the witness to show that the defendant wasincorrect or untruthful.

8. Use the witness as a vehicle to elevate thequalifications orpositions of the plaintiff's wimess.

By having prepared a guide in advance, the approach tothe witness can be determined in the courtroom. Watch thejurors during the direct tosee how they are responding tothe witness. Do they seem to like him orher orwill they beopen toa forceful attack? Do their expressions and bodylanguage lead you to believe they are accepting the witness'spositions? The answers tothose questions may alter yourinitial approach to the witness. Likewise, the witness maygive off clues by his orher body language and manner ofanswering. Does he or she look uncomfortable wnth what heorshe is saying? Does heorshe evidence an in-depth graspof the issues?

Oftentimes, cross will be utilized to strengthen theunderpinnings ofthe plaintiff's case. By listening carefully tothe direct examination, you may hear fruitful subjects tocover. It might be the improper knowledge ofthe facts ofthe case or the misunderstanding of the operationperformed that provides the basis of the opposing expertinadvertently supporting the plaintiff's case. Alternatively,perhaps itwas the question never asked on direct. Itwill beunlikely that an experienced attorney will fail toask aquestion about akey area, unless the witness disagrees withthe defense position. When such an omission is made, treadsoftly initially in exploring the area, then expose the fact thatthe adversarial witness actually supportsyour position.

THE EXAMINATIONGenerally, the rule for an effective cross is continuous,

constant, and unrelenting leading questions. The questioncontains the information to beconveyed and the witnessshould be given the latitude of onlyagreeing or disagreeingwith the question. Most important is that theexaminer, notthe witness, is in control of the situation at all times. Thequestioner must dictate thesubject matter and the flow ofthe information.

Imagination and inventiveness during the confrontationare necessary to a successful exam. Expect to fece a witnesswho, though asked to answer questions with yes or no, willrefuse to do so. Often, the more experienced the witness ison thestand, the more likely he or shewill be to skirtthisrequest. At thevery beginning of theexamination, it may bewise not to insist on onlya yes or no.To do so might leadthejuryto perceive you as too limiting on the witness anddictatorial. However, at crucial points, all will understandthat the witness mustbe compelled to answer affirmativelyornegatively. For anevasive witness refusing to give limitedanswers, anappropriate question should be"Doctor, ifyoucan answer thefollowing question yes or no, please do and ifyou cannot, please tell meandI will rephrase thequestion."By this approach you will gettheanswer you want or thejury will understand how evasive thewitness is being.

As a corollary to the leading question requirement, thereshould be only the rarest of occasions where the lawyer everasks a "Why" or "How" question. To do sowould onlyallow the witness to reiterate what was said on direct and

hurtyour case. By asking "why" you are opening thedoorand the court will allow the witness the freedom to give anextensive, and probably damaging answer.

Some lawyers religiously startoffall cross-examinationswith a collateral attack, based on the notion that they willdestroy the witness's credibility in that realm and theremainder of hisor her positions will likewise fell. Acontrary approach is to startwith an important issue thatyou can score points on, saving thecollateral attack for later.Confronthim or her on some of major topics from yourlist, thenwhen thewitness digs his or herheels in and won'tadmitwhat is obvious, add to the attack byaddressing thecollateral issues. This serves to inform the jury that thewitness doesn't agree not because heor she is espousing thetruth but because of his or her bias based on the moneyearned in the case or his or her dependence on testifying aspart of his or her income.

Impeachment from priortestimony canprovedevastating. If the witness has testified in the case at hand orprior to a different position than he or she is currentlypromoting he orshe issetting himself orherself up for cross.To impeach thewitness effectively, the material must bereadily available so as not to lose themomentum generated.Take your time and nail thewitness down to his or herposition. There are a host ofways ofdoing so. One examplemight be"You would disagree with anyone who said..., " or"Itis your constant recollection that this is what was said...,"or "Thishasbeen your unceasing recollection from the timeof the events in 2001 until today...." The jurywill

understand that this issue is no passing matter. After layinrock solid foundation on the witness's currentposition, thread theprior contradiction, making sure to question thatthen toowas the witness underoath, swearing to tell thetruth, and he or she never changed chattestimony. Becautious to not askanyquestions that will allow the witneto explain the change in the testimony.

Donot allow objections to interfere with yourexamination. When you are making points, it is likely chayour adversary will object, with their only aim, to break utheflow thequestions. Be ready tocontinue as soon as aruling ismade. Have thenext question ready, whether theobjection is sustained or overruled.

A skilled cross-examiner will use the questioning as atool to tell his or her client's story in his or her own wordWith carefully crafted questions a witness should be leftwith no other option but to provide answers thatconfirirwhat the examiner has said. In reality, under suchcircumstances, the answers are often irrelevant, it is only •questions that matter.

As a general rule, thelawyer should remember to alvra)startona high note and endon a high note. Save asignificant area of the exam for the end. Be sure that youwhen yousit down at theend of your questioning, you cado it triumphandy. Oftentimes, when a lawyer isnotsuccessful, we haveseen him or her sit down in defeat.Though one may have been subject to some rough momeduring a cross, there should beat least onepointon yourreservedas "last," that one that the witness cannot escapefrom. The jury may forget some ofthe negative areas oftiexamination, and retain this final and important victoryover the witness.

When you end your cross, the jury should be relieved iis over, not for your sake, but for thewitness's sake.Hopefully, thewitness has been so injured that, ifnot inwords, in body language, heorshe is crying out to end thexam. We all hope that when we say "I have nofurtherquestions," thejurysits back and smiles, saying tothemselves, "of coursenot, the witness hasn't an ounce ofcredibility left." Then we know we have done our job.

This isan excerptfrom the author^paperpreviously presented aATLA's 2003 Weekend with the Stars. Thecompletepaper isavailable to ATLA plaintifflaivyersforpurchasefom theATLcExchange at www.atla.exchange.org or by calling (800) 344-3C

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