Cross-examination is All About Storytelling. (Part 2 of 2)
If cross-examination is about revealing the truth of your case through story telling, how do you do it? Moreover, if the truth of your case is that your guy did it then what do you do? To be fair, I cannot answer the question in this article. But if you like this article, I can be persuaded to write another one just on that topic alone. However, here is a brief answer to the question. There are many truths about a case, about a witness, or about the events surrounding a case. The challenge is to find the real story about your case or the witness.
Once you have found the truth, or a truth, about your case or about the witness you tell the story one question at a time. The witness’ answer does not matter as much, if at all. The reasonableness and the sincerity of your story is what matters to the jury. The jury will remember and accept your story regardless of the witness’ answer. For example, every single witness has a story, such as the witness is biased, mistaken, inept, out to lunch, whatever. Moreover, every witness has a story she or he wants to tell. It is important to note the difference between the two. The story that the witness wants to tell is not necessary the same, and seldom is, the same story about the witness. The true story about an expert witness might be that he or she is a hired gun or an expert for sale to the highest bidder. If so, you never need to question the expert witness about his credentials, expertise, or conclusion. All you would need to do is tell the true story (in question format) about the witness—that is, that he or she is for sale on the auction block to the highest bidder. In this scenario, it would not matter that the witness might be correct in his or her conclusion or that the witness has impeccable credentials.
The cross-examination of an eyewitness might go something like this. The example is taken from a case where the attendant of a 7-11 gas station was called to testify two years after the incident about the identity of a suspect who was speaking with two other individuals next to the public phone outside the store. The day the witness testified would have been his second time “seeing” the defendant. The true story in this cross-examination was that the witness was not competent to make a proper in-court identification of the suspect.
Question: You have been working at the 7-11 gas station for the last 5 years?
Answer: Yes sir.
Question: As a cashier?
Answer: Yes, that’s my job.
Question: You work 6 days a week?
Answer: Yes.
Question: You put in 9 hours a day?
Answer: At least, it takes me an extra 15 to 20 minutes to wrap up my day.
Question: You see a lot of people in and out of the gas station.
Answer: Yes sir.
Question: On average you see 75 to 100 customers a day at the register?
Answer: Yes, and I see more around the gas station. We’re very busy.
Question: In an average year, you see more than 30,000 customers?
Answer: I guess so.
Question: In the last two years you have seen more than 60,000 customers?
Answer: I see a lot of people every day. Sir, I can’t remember them all.
Because the risk of failure in a trial is heightened during cross-examination, telling a true story about your case or witnesses in cross-examination will help you avoid the pitfalls and master the basics of questioning. Here are some of the basic principles that might help one to avoid the agony of defeat and to experience the thrill of victory:
1. Find a story, a real story about your case, witness, events, etc! Then tell it! Prepare your story and break it down into concise statements to control the scope and the direction of your cross-exam. Then tell your story. If you draw an objection, alleging that you are testifying, then you know you are doing really well. This is the point of cross-examination. You tell the story one question at a time and have the witness confirm or deny the fact. Again, the answer is not as important as your true story. For instance:
Question: The itsy bitsy spider went up the waterspout, true?
Answer: No, it did not.
Question: Down came the rain, correct?
Answer: No, it was sunny.
Question: And washed the spider out, correct?
Answer: Maybe, I am not sure.
Question: Then the sun came out, true?
Answer: The sun was out all day and night.
Question: And dried up all the rain, right?
Etc…!!!!!!!
2. Rarely take on a witness in his or her field of expertise. As a general rule, it is unwise to attempt to discredit a witness on his or her field of expertise. In most cases, the witness is by far more knowledgeable about the subject matter than you are. A direct attack on the subject matter results in an opportunity for the witness to enlarge upon the testimony he or she has already given, and to explain what might have otherwise been misunderstood or even overlooked by opposing counsel and the jury. The task here is to expose the witness' motivations, biases, shortcomings, etc.
3. Establish only facts from an expert witness. In preparing your cross-examination, pay close attention to the clear distinction between matters of scientific fact and mere matters of opinion. An expert witness can hardly disagree with established facts, but would be more than pleased to let you know why in his or her opinion the facts support his or her conclusion. The facts will enable you to argue your theory of the case with credibility and force.
4. Avoid posing questions that call for or invite opinion testimony. Obviously, in spite of your best effort to control the witness, the witness would love the opportunity to tell you what they think about the case, your client, etc. Therefore, if you elicit or invite an opinion from the witness, you are going to get the answer you do not want to hear.
5. Make the opposing witness your witness. As a matter of principle, jurors connect with witnesses before they connect, if at all, with the attorneys in the courtroom. This means that witnesses generally have “built-in” credibility. Therefore, in a well-crafted cross-examination, you can establish with the aid of the witness a number of irrefutable facts to argue your theory of the case.
6. Cross-examine the witness early and often before the trial date. In other words, interview and study the witness far in advance of trial. In trial, as a matter of principle, you cannot afford to ask a question to which you do not know the answer. You should prepare your cross-examination and test it out with the witness prior to the trial date. In this way, you will learn in advance of the trial date the answer to your question and the reason why that is the answer to your question. Moreover, if the answer to your question is a damaging one, you can either rework the question to one that works for you or abandon it altogether without any risks.
7. Do not repeat the witness’ direct testimony. It is very easy to fall in the trap of allowing the witness to repeat the direct testimony, which results in reinforcing the opposing party’s case and bolstering the witness’ credibility. If the jury hears it once, maybe they will believe it. If they hear it twice, they will probably believe it. And, if it is in writing (like the BAC ticket,) nothing on this earth will persuade then that it’s not true.
8. Do not get greedy. Lengthy cross-examinations without focus, direction, and purpose are disastrous and should rarely be attempted. Your goal is to elicit enough information to argue the theory of your case. Therefore, do not ask one question too many, the witness would love the opportunity to burn you, if possible.
