Before You Cross-Examine, Write This Down

“The toughest part of being a trial attorney, whether criminal or civil, is pulling off an excellent cross,” says Toni Messina in her article for Above the Law. So, if you’re a new trial attorney, or it’s been a while, it’s natural to be nervous about an upcoming cross-examination. An excellent way to calm your nerves and set yourself up for success is to write down virtually all of your questions and related information in advance. Here’s what to write.

A page of cross-examination questions for each witness should include

• A heading for each issue with the questions below (if the questions are arranged by issue, you’ll be able to change the order of examination by simply shifting around issue pages);
• Detailed questions;
• Anticipated answers (in brackets underneath proposed questions);
• Cross-references to exhibits that relate to the questions and deposition extracts that impeach or support (placed to the right of the proposed questions);
• References to Evidence Code sections that relate to admissibility of answers sought; and
• Questions that are optional, risky, or to be dropped (placed to the left of the proposed questions).

Organizational tip: Use lined sheets in a three-ring binder and make the first page for each witness a list of the “props” needed for the witness, including depositions, demonstrative evidence, interrogatory extracts. The second page lists the main points to be made with the witness, including important exhibits that can be introduced only through the witness. Use the list of main points to check against the final examination questions; in trial, before you complete examination, glance through the list to make sure you haven’t missed anything crucial. Then comes your page(s) of cross-examination questions.

Begin your examination strong and finish strong. Arrange the written-out questions so that there’s a strong beginning sequence that will grab the jury’s attention and a closing sequence that will allow you to exit on a strong conclusion.

With experience, you may find that writing out detailed questions constricts flexibility and dampens spontaneity. Many experienced trial attorneys write down only general topics of examination. If this works best for you, you should still write down references to key exhibits and impeaching deposition testimony.

Before your next opportunity to cross-examine a witness, review the expert tips in CEB’s Effective Direct and Cross-Examination, chap 3. And get specific and helpful knowledge for cross-examining an expert witness in CEB’s program Strategic Tips for Cross Examining Expert Witnesses, available On Demand.

Other CEBblog™ posts on cross-examination:

• The Best Way to Start a Cross-Examination
• 13 Routinely Helpful Cross-Examination Questions
• Keep Cross-Examination Short (Unless You Shouldn’t)

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