Cross-Examination: 12 Powerful Truths and Tricks

Cross-examination is probably the sexiest part of a trial. A trial lawyer with the proper cross-examination techniques can potentially nuke the other side's case while strengthening their client's case. That's a lethal combination!

On its surface, cross-examination is an examination of an "unfavorable" witness or opposing party.

Therefore, cross-examination is the best tool for attacking the credibility and accuracy of an opposing party's case. 

To begin mastering cross-examination, you must first understand the 12 fundamental truths of cross-examination. These truths are so universal that they apply to all trials and all cross-examinations.

Let's dive in!

Establish your goals for each witness.

Mock trial teaches us to cross-examine every witness brought to the stand. However, before you cross-examine a witness in a real trial, it is crucial to establish your goals for each witness. 

Ask yourself if cross-examining the witness is necessary, and then consider the following question.

• If the witness testifies, will the testimony hurt your client's case?
• Will the cross-examination help your client's case?

If the witness testimony will hurt or not help your client's case, then there is no need to cross-examine that witness. Why risk asking questions that may cause damage to your client?

Alternatively, if you think there will be some benefit for your client to cross-examine the witness, your job is to let the witness make themselves look bad through their answers without you looking like you are trying to embarrass and humiliate the witness purposely. 

Whatever you're trying to accomplish during cross-examination, let the witness answers do it for you. 

Then follow up with strategic, leading questions based on your careful review of the witness’s earlier testimony in depositions, at trial, and with relevant admissible evidence.

Do you have an upcoming cross-examination? I recommend you check out Trial Ad Academy. This is an online course that will take you through all the steps of executing an effective cross-examination.

There is a difference between getting a witness to admit something and you proving it.

You need to internally accept that there is a distinction between getting a witness to admit something and you proving it.

Trying to get the witness to fully admit to a simple point is a trap that a lot of inexperienced lawyers fall into. For example, if you try getting the witness to admit that today is Saturday, then you may have a stubborn witness who says, "today is the day after Friday."

While the witness did not admit to your phrasing, the witness is admitting to the point.

In doing so, the witness will likely make themselves look bad in front of the jury. What you want to avoid is the temptation to start applying pressure on the witness so the witness admits to your statements verbatim. 

Wasting time on petty points will do more harm to your cross than the witness testimony.

So, consider asking one follow-up question like, "and the day after Friday is Saturday, correct?"

If the witness tries to play games with another dodgy response like "yes, the same day as the day before Sunday," then just move on. You've made your point and the witness made their impression with the jury.

Be strategic when choosing your strategy.

You must be strategic with your cross-examination. And you can achieve this by choosing one of the three strategies discussed below. 

• Use the other side's witness to help build your client's case
• Use your cross-examination to nuke the entire testimony of the witness
• The hybrid approach

a. Using the other side's witness to help build your client's case

The first strategy involves using the other side's witness to help build your client's case and to help solidify your client's argument. Your goal in using this strategy is to prove certain aspects of your client's case through cross-examination of the other side's witnesses. 

If you can achieve this, you'll strengthen your closing argument because you can essentially say that "these issues are uncontested, the other side's witnesses proved these issues," which will be compelling to the jury. 

b. Nuke the entire testimony of the opposition witness

The second strategy is the one you typically see on TV, which involves using your cross-examination to discredit the witness completely. 

With this approach, you need to be very calculated and strategic because if you decide to nuke the entire witness's testimony (e.g., impeaching the witness), you risk not being able to apply the first strategy. 

In other words, you will have a hard time arguing that the discredited witness made credible statements to help your client's story. That's an oxymoron. 

You can't get it both ways.

For instance, if your cross-examination proves that the witness knows nothing about cars, but you still try to argue that the witness credibly confirmed the type of car your client was driving, then it's a hard sell. 

Hence the reason for the third strategy.  

c. The hybrid approach

The hybrid approach exists because the nuking strategy can be a bit overkill. With the hybrid approach, you get the best of both worlds, but I'll be the first to admit it's pretty hard to pull off. 

To implement this strategy successfully, you need to segment your cross-examination in a way that's clear to the jury.

Your goal to segment the portion that you're attempting to discredit without negating the testimony that you're wanting to use to bolster your client's case. 

For example, maybe the witness knows nothing about cars, but can testify to seeing the name of the car's brand on your client's trunk.

Ask leading questions.

During cross-examination, all your questions need to be leading questions, such as “It was a sunny afternoon, correct?” 

Leading questions press witnesses on the path you want them to go while limiting their ability to derail the flow of the conversation.

The best leading questions follow the One Fact, One Question technique.

However, there are a few exceptions to this rule such as

• When you're not truly prepared for your cross-examination of a particular witness.
• When the witness thinks they're the smartest person in the courtroom.
• When you pin the witness down.

Exception one: You're not truly prepared for your cross-examination of this particular witness

There will be times when you will not be truly prepared for your cross-examination of a particular witness.

This doesn't mean that you're not prepared for other witnesses, but maybe this specific witness was a surprise witness that you weren't expecting would testify. And, unfortunately, you didn't get much during the direct examination. 

In such a situation, the best way to get ammunition is by asking open-ended questions.

This is very risky because the witness may take the conversation down a dangerous rabbit hole. 

However, by asking open-ended question, the witness may spotlight where you need to take this cross-examination, and at that point, you can start asking leading questions.

Exception two: The witness thinks they're the smartest person in the courtroom

There will be times when the witness thinks they're the smartest person in the courtroom, and they want everyone to know it. Such an attitude by the witness may come off as abrasive to the jury, which may cause the jury to not like the witness.

In this case, consider baiting the witness by asking a few open-ended questions.

As the witness answers the questions, they keep shoveling themselves into a deeper and deeper hole.

In other words, when the witness is their own worst enemy, then consider letting them do the heavy lifting for you. 

Exception three: You pin the opposition witness down

Exception number three is a matter of confidence and skills. 

This is a case where you have the witness pinned down, and you know that no matter the answer, it will not be beneficial for the witness.

You basically are putting the witness in a no-win opportunity and you know that any answer will benefit your client's case.

Be strategic in starting your cross-examination.

What's the best way to start your cross-examination?

It depends on what your goals are. 

One way is to come out with hard-hitting questions. That way, you capture the jury's attention, and they know this cross-examination is worth listening to.

However, you need to be strategic about it.

Some situations may require a softer approach. Instead of using a wrecking ball, it may be better to be more surgical. A friendlier demeanor can result in a witness becoming more open to admitting to specific points. 

Some of the best cross-examining attorneys get great information from a witness and the witness has no idea because the attorney is being so conversational. 

Listen to the answers that the witness is giving you.

Remember to listen completely while the witness is responding to a question because their answer may completely change your direction or may require you to pivot just a little bit to have the best cross-examination possible. 

Do not be too focused on the next question you're thinking of asking. Pay attention, and while doing so, a great tactic is to incorporate the answer into your next series of questions. 

That way, things flow more seamlessly. If you don't, your cross-examination becomes choppy and harder to follow from the jury's perspective.

Also, avoid looking down at your notes while the witness is responding because it helps you to observe the witness's body language, which can be a good sign to help you determine the pressure point to stress.

Don’t ever argue with the witness.

If the witness tries to ask you questions, don't panic and lose control.

Keep asking simple questions that are short and easy to understand.

You're not on the stand, the witness is. 

If you start trying to argue with the witness, then you run the risk of coming off as a bully since jurors will think that you have the advantage as a lawyer.

In situations like this, consider asking this important question to the witness. 

Accept that the Scooby-doo moment is never going to happen.

Don't know what the Scooby-doo moment is? If so, then click here for a quick read because this is the most common mistake lawyers make during cross-examination. 

The sooner you accept that the Scooby-doo moment will never happen, the sooner your crosses get so much better.

That may seem counterintuitive. You would think that the upper echelon crosses all involve the Scooby-Doo moment occurring. 

In reality, those upper-echelon crosses don't need the Scooby-doo moment to be effective, and that's what makes them so good. In fact, that's how good I want your crosses to be!

Control the witness on cross-examination. 

This is what most people are worried about when it comes to their cross-examinations. They worry that they won't be able to pin down the witness to get specific responses, certain answers, or even to prove certain facts to the jury. 

The best way to control the witness is through three particular things:

• Pace
• Logic
• Peer pressure

a. Control the witness through pace

This is so important and critical for every effective cross-examination because if you have the right pace, you can control the witness. 

To control the witness by pacing, ask a series of longer and a series of shorter questions, structuring your questions to where it is eliciting the desired response. 

An effective pace will also help the jury pay attention.

b. Control the witness through logic

There will be times when the witness is fair, credible, and trustworthy, but they're basing their testimony in favor of the other side on an incomplete picture.

If you can use your cross-examination to complete that picture, then the witness goes through the series of logic and sees a logical conclusion; they may end up agreeing to that conclusion.

In that situation, that's a win because the jury will be compelled by that finding and the fact that the witness agreed with it. 

Nevertheless, don't be too focused on making sure the witness admits to that fact. You'll have to use your judgment on how the witness is handling those series of questions to where the witness will most likely agree. 

But if you get the feeling that the witness is not credible, then simple logic may not be effective enough. This is when you apply the third approach.  

c. Control the witness through peer pressure

During cross-examination, structure your questions in such a way that puts the witness in a crossroad position to either answer the question, try and dodge the question altogether, or make them look bad in front of the jury for reaching an illogical result.

More often than not, people do not want to look bad in front of those judging them, so they're typically in a situation where if it's a fair question, they are going to answer it directly.

Be a bit theatrical.

During a cross-examination, the trial lawyer is the focus. 

If you want to emphasize that things are concerning, you need to look worried and act concerned. 

If you're hearing an answer that may not be truthful, you need to show the jury something's not adding up. For example, you could potentially raise your eyebrows, pause for a second, scratch something down on a piece of paper, or just look confused at the answer.

Whatever it is, you need to be able to tell more of a story than just what your questions are asking. 

Use a little bit of acting, use a little flare, but don't be overly dramatic and lose credibility. 

Keep your cross as concise as possible.

Keeping your cross as short as possible is essential for several reasons.

• First, you don't want to beat up on the witness by trying to wear them down over time (this isn't an interrogation). 
• Second, you always want to maintain the jury's focus. If it goes on for too long, they'll start tuning you out, and that's not a good thing. 

Your ultimate goal is to ask as few questions as you can. When you feel that you have properly emphasized the crucial details or discredited the witness, gracefully pass the witness.

End on a strong note.

There are two ways to end strong. You could use the nuke approach to discredit the entire testimony at the end of your cross-examination and then close out.  

Or you can slowly build up your point using the pace and the theatrics technique to gain the attention of everyone in the courtroom. 

Then take that examination to where it leaves a lasting impression. 

Consider using a pause to gain attention, looking at the jury while asking the question, or any other cross-examination technique that tells the jury to listen up.

Takeaway: Use cross-examination to build your client's case

Hollywood may have you believe that cross-examination is a dramatic battle between a lawyer and a witness. But that is not what it is.

Cross-examination is an opportunity to build your client's case and to help solidify your client's argument with the "help" of an opposing witness. 

The unpredictability of the opposing witness can tank your cross-examination. Thankfully, these 12 principles can help you increase the effectiveness of your cross-examinations.

If you have any questions, let me know in the comments below!