Cross-examination is All About Storytelling (Part 1 of 2)
Just about every trial lawyer will tell you that cross-examination is by far the most challenging aspect of a trial. In fact, many say that cross-examination is an “art” and few are born with the innate talent to do it well. The most notable books on the subject reinforce the idea that cross-examination is an art. For instance, The Art of Cross- Examination, by Francis L. Wellman, The Lost Art of Cross-Examination, by J.W. Ehrlich, and The Art of Questioning – Thirty Maxims of Cross-Examination, by Peter Megargee Brown. So what does this mean for the rest of us who were born without the artful talent of cross-examination? I suppose we can only hope that through experience and trial practice we will develop the skill and proficiency to avoid the most severe battle wounds of trial.
An effective cross-examination can make you feel like you are the greatest lawyer of all time. On the other hand, a failed cross-examination can deflate you and make you question even your decision to enroll in law school. Cross-examination brings to life the old ABC Sports’ slogan: “The agony of defeat and the thrill of victory!” I agree that cross-examination is the most difficult trial skill, but it is not an art. Thank goodness. The good news is that anyone can do it well, in fact, artfully.
Good cross-examination is the result of thorough preparation and hard work. This you knew. But did you know that the most effective cross-examination is when, based on a complete knowledge of the legal and factual issues involved in the trial, the examiner tells his or her story about the case, the witness, or the event? Yes, cross-examination is story telling. Right about now you are thinking…“is this guy for real?” Yes, I am not kidding. A successful cross-examination is telling the true story about your case, the witness, or the event one sentence at a time.
Cross-examination is not about getting the witness to agree with you point by point (this would be nice) or to pummel the witness to submission (in some cases this would be nice too.) These are not realistic goals. In fact, in a genuinely challenging cross-examination rarely will you and the witness agree on any point. It is not reasonable to expect collaboration from an opposing witness, especially an expert witness, unless you are watching an episode of Perry Mason. Not only does Perry Mason get the witness to agree with his story, but also, his cross-examination breaks the witness into confessing about the murder and to all future murders in upcoming episodes.
Now, perhaps the question in your mind is “why is cross-examination all about story telling?” I suppose the honest answer is that cross-examination is not all about story telling. It is anything you want it to be, but a successful cross-examination is all about story telling. You see we cannot lose sight of our audience, the jurors, nor can we lose sight of how jurors individually and collectively learn and process information during a trial.
Picture yourself in the courtroom staring at the jury box. The jury is sitting there, six or twelve people, selected to hear your case presumably because they are open minded, have never heard of your case, or have no opinion about your case. (If you are picturing a DUI case, then the jurors in the jury box are the ones left because you ran out of peremptory challenges and the court would not grant all of your challenges for cause to keep you from busting the panel.) When those six or twelve people get together in that jury room something magical happens. Make no mistake about it, the jurors might be ignorant about the law and court procedure, but collective they become “super-human.” Collectively, they are the smartest people in the courtroom. They pool together their experiences, knowledge, perceptions, commons sense, and feelings. This matters when you are asking them to follow you all the way to a not guilty verdict (oh, those sweet words.)
For example, the jury’s “super-human” quality allows them to discern lawyer tricks quicker then a blink of an eye. So, a “smart” cross-examination might result in the witness apparently saying the right things, but the jury will reject the examiner’s excellent work because they perceived the examiner’s approach to be phony or manipulative. The jury will then assume that the witness’ answers were the result of shrewd lawyer tricks and not the truth. So, the object of cross-examination is to test the truth of the opponent’s story against yours. This is what jurors expect to happen during cross-examination.
There is another reason why cross-examination is all about story telling. Jurors do not remember verbatim the witnesses’ answers. They do, however, remember stories. This is true of any human. Joshua Karton, an accomplished actor and jury consultant, says that less than 7% of communication comes from spoken words, 38% comes from voice (tone, inflection, etc.,) and 50% comes from visual stimulation (eye contact, movement, images, etc.) The rest is perception and or interpretation by the listener. This means that jurors learn very little about the truth of any case from the actual words spoken in trial.
A jury, even one with super-human quality, is handicapped. We all know for ourselves that learning through our ears is very difficult. In fact, must of the learning we do is visual, and as lawyers, we do must of it by reading. Therefore, the most effective way to communicate through spoken words is the use of stories. This is the only way I know to meaningfully overcome the jury’s handicap. Stories allow the listener (the jurors) to be engaged in an intimate way, invoking emotion, mental pictures, feelings, etc.
This brings me back to my point. Cross-examination is all about story telling, guiding the jurors to see the truth of your case and inviting them to adopt it as their own. In this way, it doesn’t matter whether or not the witness agrees with you because the jury will remember the story, the true story, you told during cross-examination.
