The Biggest Mistake Lawyers Make with Cross Examination

Written by Jarrett Stone

​Everyone wants the Scooby Doo moment. 

​For those that missed out on ​Scooby Doo as a child, every episode ended with Scooby and the gang explaining what the villain did wrong and why.

And each and every time, the villain would then confess to the crime (followed by "...and I would have gotten away with it if it weren't for you meddling kids!")

​For the most part, this final scene of Scooby Doo is pretty similar to a cross examination.

​First, you get all of the facts before trial (i.e. the "final scene).

Second, you use these facts to investigate and determine what the other side's witnesses did wrong and why.

Third, you cross the witness by using these facts to show the jury what the witness did was wrong and why.

But, there's one major distinction -- you must stop there!

​​NEVER try to get the witness to agree with what you're saying and ultimately confess to doing something incorrectly or to not being credible.

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Witnesses will deny, deflect, and/or ramble

This is because the witness will never agree with that ultimate conclusion. Instead, they'll either deny, deflect, or just ramble in an effort to avoid agreeing with you.

Not only does this cause your cross to end on a flat note, but it also gives ​the witness an opportunity to try to justify their actions.

Here's an example:

Question #1: You were driving that night, correct? 

Answer #1: Correct. 

Q2: And your vehicle rear ended my client's vehicle, correct? 

A2: Yes.

Q3: So you're at fault for the collision?

A3: I don't think so. I tried to slow down in time but the road was slick.

​With the above example, the lawyer should have stopped after receiving A2.

Odds are if you're in trial, then that means that the defendant has disputed liability for the entire time leading up to trial. And it is highly unlikely that the defendant will change course just because he or she is on the witness stand (P.S. here's a good way to pin down a witness like this and a video to watch).

Instead, by stopping right before the ultimate conclusion (like with A2), you ​are giving the jury a puzzle piece. And if you're clear and concise throughout trial, then the jury will most likely be able to put the puzzle pieces together on their own. ​

​Either way, it's your job ​to put it all together during your closing argument. Especially after you have asked the most important question for a killer cross examination

Because at that point the witness or defendant can't deny or dodge the question. 

​So always remember -- don't get greedy with your cross and leave the confession moments to Scooby and the gang.

​​Want to master the courtroom?


About the Author

Jarrett Stone is the founder of Law Venture and owner of Stone Firm, PLLC. He's a husband, entrepreneur, and self-proclaimed nerd.

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