Civil Litigation Criminal Law Litigation Strategy Trial Strategy

Keep Cross-Examination Short (Unless You Shouldn’t)

153165013A successful evangelist once said about his sermons: “Nobody ever got religion after the first twenty minutes.” His time estimate may be wrong, but every evangelist and trial attorney has wrestled with the short attention span of their audiences.

At trial, counsel and client are fascinated by everything that goes on and are almost never bored. In contrast, most jurors will nod off from time to time (or wish they could) during a trial.

Because you want to take advantage of the jury’s most attentive moments, your cross-examination has to be designed to keep the jurors alert and awake at key moments. Usually that leads to

  • planning shorter examinations,
  • emphasizing important points, and
  • not mentioning (or touching only briefly on) less important points.

A jury will resent it if you belabor the obvious. In the 1984 trial of ex-automaker James DeLorean on drug smuggling charges, DeLorean, on videotape, referred to a suitcase of cocaine as “good as gold.” The prosecutor used that statement in opening and closing statements, and also presented it to the jury at least five times during testimony. Several jurors later said they were offended by this overkill.

And don’t get bogged down in nonessential details or waste time impeaching a witness on petty or collateral matters.

But there still will be many occasions when lengthy cross-examination is necessary. The most obvious instance is when vast ground must be covered on cross. Less obvious examples are the following:

  • To let witness wear out welcome. Cross-examination of the witness who makes a good first impression, but wears out that impression once the jury gets to know him or her better. Many witnesses are impostors on the stand, pretending to be someone they aren’t, e.g., the mean, venal, and pompous businessperson masquerading as First Citizen of the Community.
  • To demonstrate complication. If one of the main points to make to the jury is that things were complicated (knowledge of regulations, confusion versus fraud, difficult medical decisions), you may deliberately provide the jury with so many difficult-to-understand facts and documents that they become as bewildered as the client claims to be.
  • To use repetition to underscore point. People tend to believe statements that are constantly repeated. Ask a witness to repeat strong points more than once. The judge may find this technique objectionable, but you should at least be able to ask one repetitive sum-up question “to clarify things for the jury.”

For more time-honored rules of cross-examination—and when to break them—check out CEB’s newly-updated classic Effective Direct and Cross-Examination, chap 4.

Other CEBblog™ posts on witness examination:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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