How do you know if your cross examination is working?
It’s simple.
The witness breaks down and cries and turns into a quivering blob of Jello.
Ahh…were it so simple…
In the movies that’s what happens.
On TV, that’s what happens.
For those of you old enough to remember the TV show Perry Mason (now on reruns on Me TV) that’s what happens.
In reality, that NEVER happens.
EVER.
It is however every trial lawyer’s dream for that to happen.
We fantasize about that happening one day.
We dream about the perfect cross-examination where an opposing witness simply breaks down and acknowledges that we are 100% right about everything we are claiming.
We think about how amazing it would feel if we were Tom Cruise in the movie “A Few Good Men” starring Jack Nicholson in the triumphant scene where Cruise’s character is cross-examining Nicholson’s character in a military trial.
Let me bring you back to reality for a moment…
It never happens the way you see on TV or in the movies.
Cross-examination never goes that beautifully.
Instead, here’s an attorney’s agenda when getting up to begin cross examination:
Show bias
Show the experts’ opinions are deficient
Get expert to recognize our expert
Get expert to admit to the rules
Get expert to admit rules were not followed here
Show that expert is charging lot of money
Show inconsistencies in current testimony
Let’s say this is a medical malpractice trial.
I get up to cross examine the defense’s medical expert.
This expert has now spent hours telling the jury why the doctor whom you have sued did nothing wrong. He has also explained in great detail how if your doctor did something wrong, it did not cause your injuries. He has also explained that if he did something wrong and that caused your injuries, they are really not as bad as you claim them to be.
It turns out this expert is slick. He has testified many times before for the defense. In fact, he is routinely hired by defense lawyers in medical malpractice cases.
You might say he’s been around the block a few times.
Some plaintiff’s attorneys would even say he’s a frequent flyer and frequent visitor in our state courts here in New York.
An inexperienced attorney is going to immediately have a problem with this professional expert witness. He simply is not going to be able to control this witness on cross examination.
This becomes immediately evident when the lawyer tries to hold the doctor to either ‘yes’ or ‘no’ answers.
This medical expert knows what the young inexperienced attorney is trying to do.
He has been trained by very good defense lawyers that under no circumstance is he to answer the question yes or no.
Instead, his agenda is to explain every single answer. Every single time.
That will lead to frustration by the attorney asking him questions.
That will lead to him asking the judge for help to control this witness.
That will show the jury that this attorney is weak and ineffectual.
On the other hand, you will immediately recognize an attorney who is in control.
An experienced attorney will immediately set the ground rules for this opposing expert.
“Dr. Jones, I’m going to be asking a series of questions that call for ‘yes’ or ‘no’ answers. If you can answer my question ‘yes’ or ‘no’, do you promise to answer it ‘yes’ or ‘no’?”
“Dr. Jones, if you are unable to answer my question yes or no, do you promise to tell me you cannot answer the question yes or no without giving me an explanation?”
“Doctor, if you are unable to answer the question I asked because of the way I phrased it, do you promise to tell me you are unable to answer my question because of how I phrased the question and agree not to explain why you cannot answer the question?”
By getting the doctor to agree to these promises, I’ve now set the groundwork for questions that I know the doctor will try and wiggle out of.
Every time the doctor tries to give an explanation, I will simply bring him back to his promises that he made at the very beginning when I stood up to cross examine him.
This is one strategy that when used, is extremely effective in controlling a doctor who has been trained to explain away every single answer.
You see, when an attorney gets up to cross-examine a witness, his goal is to tell the jury a story. In his own words. The only way he can do that is by asking short leading questions.
The only way he can do that is by getting the doctor to either acknowledge or disagree with a statement or a question.
You will find that the best trial attorneys who conduct cross examination typically give the opposing expert only four choices on how to answer a question.
Yes,
No,
I don’t know, or
I can’t answer the question the way you phrased it
That’s it.
Those are the only options I want to give the opposing expert on cross examination.
Since this is obviously a hostile witness who is coming in to contradict everything we are claiming, I’m permitted to ask this witness leading questions.
That means that instead of asking open-ended questions such as who, where, when, what, how and why, I’m now making a statement and simply asking the doctor whether he agrees with it or disagrees with it.
I am never, ever asking the doctor to explain anything on cross examination.
You might think that I’m being highly restrictive by not giving this expert an opportunity to explain his answers.
Your thinking is absolutely correct.
The reason is that he will already have spent many hours giving detailed explanations when he was questioned by his own attorney during direct questioning.
My goal is to expose holes in the doctor’s testimony. By showing inconsistencies, I’m able to show the jury that this doctor may be less than truthful.
In addition, I am permitted to ask a medical expert hypothetical questions.
This allows me the opportunity to state a series of facts that we believe to be true that are supported by the evidence in the case.
Naturally, the expert will not agree with our set of facts. That’s okay. He does not have to.
Instead, I ask him to assume that certain facts are true.
In that instance, assuming these facts to be true would he agree that his opinion would be different?
“Dr. Jones, I want to assume that the following facts are true…
Would you agree that in that instance the failure by Dr. Jones to do A, B or C would be a violation of the basic standards of medical care?”
If an attorney sets up the hypothetical correctly, the doctor will have no choice but to agree that in certain circumstances the failure to do certain things represent a departure or violation from good medical practice.
The goal then for the attorney who represents the injured victim is to make sure that all the facts that are used in the hypothetical are in fact true and supported by the evidence in the case.
Then, during closing arguments we can point out to the jury that if the jury believes that our set of facts are true, then the defense’s own medical expert has admitted and acknowledged that what they did violated the basic standards of medical care.
That is a very powerful tool to use during cross examination.
You will find that really good trial attorneys experience nirvana getting an opposing expert to break down on the witness stand. That might happen once in a 30 year career. Even then, that’s a lot.
Getting back to the title of this article, how do you know that your cross-examination is working?
You know because you can feel the tension in the courtroom.
You can feel that the witness is uncomfortable.
The tension is palpable.
The witness is becoming shifty and hesitant when answering.
The witness knows he’s being forced to answer one of only four ways.
The witness knows he’s unable to explain anything during a tightly controlled cross examination. The witness recognizes that he has no choice but to admit that certain things would be improper if certain facts were true.
That’s how you know that cross examination is working.
This article was written and published on the internet by Gerry Oginski on 04/04/16.
This article is intended to provide general information about legal topics. Nothing in this article or in the documents available through it, is intended to provide legal advice. You should not rely on any information contained in this article, or in the documents available through it, as if it were legal advice.
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