Begin and End with Your Strongest Questions

use strong question to open and close your cross-examination of a trial witnessWhen cross-examining a witness, almost always begin and end with your strongest questions. Except in a couple of situations.

Many attorneys begin cross-examination of witnesses with the verbal equivalent of clearing their throats. They ask routine questions about employment, or other peripheral matters. This is not the way to go.

Start with a bang! A good way to begin your examination with flair is to open with the question that may elicit an answer that will damage the witness and the adversary’s case. For example,

Mr. Jones, didn’t you overstate the net worth of your company by $15 million when you sold it to my client, the ABC Corporation?

or

Ms. Smith, haven’t you made most of your money the past 3 years by being a paid informant for the government?

Ideally, you’ll end your examination with a question and answer showing the witness to be a deliberate liar, so biased as to be unworthy of belief, or completely supportive of your client’s case.

But if you’re not fortunate enough to have the materials to end that way, you can still try to go out on a high note. Carefully draft a set of safe “exit questions” and reserve them until the end of your examination.

But there are situations in which you’ll want to ignore the rule to start and end strong. For example:

  • You have more to ask. You should not sit down after a strong question if there’s still other important material to cover. If you’ve prepared good exit lines, you’ll still have a strong question to conclude with after covering other areas.

  • The jury isn’t ready for a bang. Before asking important questions, whether at the beginning or end of examination, gauge the time of the day, the attentiveness of the jury, and the total length of the anticipated examination. If an examination is begun at 4:00 p.m. after a long, wearying day, you shouldn’t leap into important areas immediately. Rather, go over less important matters, and begin the meat of the examination early the next morning, when the jury and judge are fresh.

Learn about all of the time-honored rules of cross-examination—and when to break them—in CEB’s Effective Direct and Cross-Examination, chap 4 and in CEB’s program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. 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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