written by guest blogger and NITA faculty member Linda Lane
Less is more. We know this. Yet, perhaps more than any other time in trial, cross-examination poses the most dangerous trap for self-impressed attorneys. We become blinded to this simple truth by our own brilliance or potential for brilliance. In preparing for cross-examination, we would benefit from remembering that less is truly more.
Cross-examination presents a unique opportunity for one side of the case to completely interrupt the flow of the opponent’s case-in-chief. Cross-exam allows us, in the middle of the other side’s coherent story, to stand up and make our points with each witness presented by our opponent. To remind the jury of our story in the midst of hearing the other guy’s story.
Many lawyers waste this rare chance by complicating things with unnecessary details. Wasting time or simply wasting dramatic effect. Risking losing the jurors’ perception of our confidence that we are winning this battle. Possibly risking adding weight or sympathy to the other side. Talking too much.
Our inability to stop may stem from our Technicolor visions of masterful, “gotcha” cross-examination moments depicted in Law & Order, The Verdict, possibly even My Cousin Vinny. It may also stem from well-intentioned cross-examination training where we are reminded again and again that we are the star of cross-exam, the focus should be on us as the examiner, we must score points by whipping the witness in to shape. This is all true. However, in order for these precious moments to have the most bang for their buck and not simply be lost on the jury, we must simplify and hone our cross-examination to make it most effective. We must not get lost in our own rhetoric. We must trim the fat.
In even the most complex of cases, ideal cross-examinations will typically establish three to five soundbites from the adverse witness. This winnowing forces us to choose what is important with this witness at this point in the trial. To decide which points to focus on, we can ask ourselves the following questions:
- Will this be usable in closing?
- Is it a reasonable point that this witness will accept?
- Does it support my theme?
- Is it central to my theory?
- Will the jury track it and understand it?
Each soundbite should be developed with short, clear questions. Questions should be stripped of adjectives, adverbs, inferences, and conclusions. Responses should be anticipated. There should be a plan in place to overcome interference from the witness. Ammunition should be at the ready to impeach. The lines of questioning should set out crucial details that will compel belief.
Brevity is difficult. It requires organization. It requires planning. It sometimes requires stifling our own brilliance. However, brevity will minimize risk. Brevity will enhance memorability. Brevity will give the examiner control over the witness. Brevity is harder to evade. Less will truly be more.
Linda Lane is a USD School of Law Trial Advocacy Professor and solo practicing lawyer specializing in consumer product advisement. She regularly provides consultation and advice to her clients regarding potential product liability exposure related to new or existing product lines. Since the U.S. Consumer Product Safety Commission approved the Consumer Product Safety Improvement Act of 2008 (CPSIA), Ms. Lane has actively assisted many clients in ensuring that they are in compliance with the new, heightened regulatory requirements for consumer products