Your carefully planned cross-examination will be worthless if you manage to irritate the jury. Keep in mind that the jury often focuses more on counsel than the witness. Before your next cross-examination, check out these common irritants and how to avoid them.
Jury irritation has many sources. One common source is the cross-examiner’s verbal tics. Examples of tics include saying “O.K.” or “all right” after every answer and before every question, or beginning every question the same way, e.g., “Now let me ask you this….” Both new lawyers and old war horses develop these tics. Spot them and stop them!
If you aren’t aware that you have any verbal tics, ask your colleagues if they notice any, and look for them when reviewing transcripts of your trials or depositions. Don’t just assume that just because you don’t hear them no one else does.
Another way to irritate jurors is to bore them. A cross-examination that runs at one speed is dull; mix it up. It can also be boring to hear the constant use of leading questions during a long examination; look for areas of questioning in which you can safely drop the leading question form (although not for too long).
Cut the jury’s boredom by putting on a bit of a show by giving the witness some room to hang him or herself. For example, instead of leading the witness through a conversation about which the witness has been thoroughly deposed, ask him or her to “tell us what was said.” You’ve got the deposition testimony about this conversation already but maybe the witness will give a different version at trial. Instead of a witness candidly admitting a harmful fact, you’ll have that same admission plus evidence of evasiveness. That will keep the jury entertained!
Just in case you don’t believe that jurors do get irritated by counsel’s questioning and that there are consequences of irritating the jury, here’s a jury note given to the judge in a Carson City, Nevada, trial:
We, the jury, in the interest of an expeditious trial, and for the general reduction of immaterial and repetitious questioning: Do hereby recommend that a shocking collar device be securely fastened to plaintiff’s counsel. The control of said device shall be entrusted to a responsible member of the jury panel to be selected following the next recess. We thank you for your support.
The next time you conduct cross-examination, don’t just focus on the witness; rather, pay attention to the jurors and definitely don’t irritate them!
Get practical advice on all aspects of trial examination from CEB’s fundamental guide Effective Direct and Cross-Examination.
Related CEB blog posts:
- (Almost) Never Ask Why
- Mastering the Art of Cross-Examination: Tips from a Judge
- 10 Cross-Examination Tips from a Master
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