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Monthly Theme: Examinations Part Two

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Using Smaller Questions to Make Points Bigger in Direct and Cross Examination

(Second of Two-Part Series)

Written by NITA guest blogger, Michael R. Fontham

A common failing of lawyers in trial is the tendency to cede control to witnesses, whether on direct or cross-examination.  Lawyers give up control by asking general rather than specific questions.  It may seem paradoxical, but the best method to make big points in examining witnesses is through small questions, strung together to create mini-themes.  The techniques are different in direct versus cross, but the aims should be the same:  to emphasize the strongest points forming the central message of the attorney’s case.  Many lawyers fail to understand that controlling the testimony is essential to presenting a case theory in the most powerful way, which requires the use of specific questions.  This article will discuss techniques for using this approach in direct and cross-examination.

Part II: CROSS-EXAMINATION

Just as in direct examination, lawyers often tend to be too general in cross-examination.  This fault probably results from excessive enthusiasm for the “rightness” the attorney’s points.  This zeal results in questions that are often too conclusory or convoluted.  A well-prepared witness is not likely to answer a conclusory question like “You were the one at fault, weren’t you?” with a “yes,” and more important, may respond with all the reasons the lawyer’s client was really the one at fault.  Again, it is far more effective to use specific, closed-end questions, phrased with the leading form, in which the lawyer DOES provide the pertinent information.

To understand the value of specific questions, consider the witness’s perspective.  The witness has been called and examined by your opponent.  Generally, that means the witness is loyal, to some extent, to the opposing side and wants to help that side win the case.  The degree of loyalty will differ, as a party witness has a much stronger desire to win than a third party recruited to testify, but most of the time the witness feels some responsibility to do a good job for the opposing party.  What does that require? — making points for the opposing party.  As an expert once told me, in cross-examination, “I am looking for a chance to make a speech.”  In that “speech,” the witness reiterates points from the direct examination.

The primary difficulty with conclusory or complex questions is that they invite conclusory and complex responses, embroidered with points for the other side.  In the psychology of cross-examination, and before an audience, a witness is likely to feel uncomfortable introducing a gratuitous speech in response to a specific, closed-end question.  A general question, on the other hand, fairly calls for a general response.  Additionally, questions that border on argumentative — “You said X, so Y must be true too, right?” — invite the witness to explain that the reasons why Y is most certainly not true.  Since the scope of answers are likely to match the scope of questions, the attorney controls the examination much more effectively with specific questions.

Using specific questions on cross-examination is also a great way to achieve emphasis.  More questions about a point make the points seem bigger, and on cross-examination seem to build momentum in the courtroom.  A leading treatise on trial technique opines that “[t]he successful trial lawyer takes [a] fact [and] builds up that fact until it assumes unusual importance through the medium of a series of questions….”  3 Fred Lane, Lane’s Goldstein Trial Technique 19:36 (3d Ed. 2011).  In this “mountain out of a molehill” approach, points that are important are built up through a series of questions that the attorney creates by breaking the point into its necessary components.  If the witness knows the fact is true, and would have to agree it is a fact, then the witness has to agree that the components are true as well.

One of the primary means of preparing cross-examination is to consider the prior testimony or statements of the witness.  A witness is not likely to diverge from facts described in prior testimony, and if the witness does, the lawyer can impeach with the prior (now inconsistent) statement.  Thus, for an important factual point, the attorney can achieve emphasis by breaking up the point:  if what the witness said is true, what must necessarily be true as well?  Usually the “necessarily true” points are within the scope of the statement, not outside it.

Staying within the scope of the prior statement is essential to effective cross-examination.  The lawyer should not take it for more than it is worth, but focus on the parts.  Examples of poor, better, and even better technique follow:

POOR TECHNIQUE

  • Statement:  “I had about five beers in the bar.”
  • Question:  “You were drunk that night, correct?
  • Witness is likely to deny:
    “I wasn’t even tight.  I had food and was spacing
    out the beers.”

BETTER TECHNIQUE

  • Statement:  “I had about five beers in the bar.”
  • Question:  You had five beers that night in the bar, right?

STILL BETTER

Break it into necessary parts:

  • Statement:  “I had about five beers in the bar.”
  • Questions:
    • You were in a bar that night.
    • You were drinking.
    • You were in the bar for some time, drinking.
    • You had multiple beers over some time in the bar.
    • You had five beers in that bar.

The prior statement cannot be used effectively to impeach the response to the first question, because the lawyer tried to make too much of the prior statement.  The second question should produce a “yes,” or permit effective impeachment, but it does not develop the point.  In the third approach, the attorney achieves emphasis and retains the ability to impeach effectively.  The prior statement backs up each of the questions.  If the witness denies any of the first five questions, the lawyer can fall back to the sixth, then impeach if the witness denies the question.

Small questions allow the lawyer to retain control in cross-examination.  The lawyer should have a plan and needs control to properly execute it.  The best method to maintain that control is to use smaller rather than bigger questions.

[Michael R. Fontham is a member of the New Orleans law firm of Stone Pigman Walther Wittman L.L.C., engaging in a litigation practice. Mr. Fontham authored “Trial Technique and Evidence”, a text on trial advocacy and evidence published by NITA. He is also the author (with Michael Vitiello) of “Written and Oral Advocacy in Trial and Appellate Courts”, a treatise on brief writing, oral argument and legal research. He teaches evidence as an adjunct professor at the LSU Law Center and Tulane Law School.]

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