It sounds obvious: You should always listen carefully to the witness during cross-examination. But listening means more than just hearing the words actually said. Ideally, your listening will go well beyond that, which can make all the difference in improving your cross-examination.
A good listener will
Hear tones of voice or hesitations and follow up. For example:
Q. I noticed you hesitated before answering, Mr. Smith. Was that because you were in doubt/remembered something else/were afraid the answer was going to harm you? or
Q. You chuckled as you gave that answer, Dr. Booth. Do you find something humorous in Ms. Wooster’s loss of her left arm?
Compare answers at one stage of the examination with answers at an earlier stage. If you believe that you’ve discovered an important discrepancy, point it out:
Q. You testified this morning that you caught the train at 4:00 p.m. Now you say you caught it at 6:00 p.m. Were you right earlier, or is it that you just don’t know what time you caught the train? (Objectionable, as compound, but worth trying.)
But don’t be too quick to challenge a witness about variations in testimony. You’ll discover through experience that your memory, shaped by detailed knowledge of the case, may be wrong. If in doubt, get a daily transcript, make a comparison, and use the discrepancy in closing argument.
Note answers that are totally unexpected but helpful. Answers that help your case or provide opportunities for unexpected additional cross-examination are the most common benefit to be gained from listening to a witness.
If, during your first few trials, you find yourself too nervous to listen to the witness and formulate the next question at the same time, don’t be surprised. In fact, plan for it. No rule forbids your standing at the podium silently reviewing the checklist of important ground to cover with the witness to make sure nothing significant is overlooked before sitting down.
Learn more time-honored rules and specific strategies for cross-examination from expert trial attorneys in CEB’s Effective Direct and Cross-Examination, chap 4.
Other CEBblog™ posts you may find useful:
- 12 Must-Do Tasks Before Cross-Examination
- Keep Cross-Examination Short (Unless You Shouldn’t)
- How to Use Technology for Effective Cross-Examination
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