Tips for Effective


Cross-Examination by Albert H. Lechner


Albert Lechner received his J.D. cum laude from the University of Baltimore School of Law in 1997 and is an associate in the firm Karp, Frosh, Lapidus, Wigodsky & Norwind. of Rockville. Mr. Lechner is a member of the Executive Board of MTLA’s New Lawyers Section. His practice includes motor torts, medical malpractice, product liability and premises liability. He is also a member of ATLA and the DC Trial Lawyers Association


Except for closing argument, cross-ex- amination is probably what every trial lawyer looks forward to the most. The thought of tearing a witness apart a-la Tom Cruise in A Few Good Men appeals to all of us. Nevertheless, many of us do not conduct persuasive cross-examina- tions. This article suggests ways to make your first, or next, cross-examination more effective and therefore more persua- sive by discussing some general principles and by demonstrating how to maintain control over difficult witnesses and exactly how to impeach a witness with prior in- consistent statements.


I. General Principles 1. Effective cross-examination begins If you are to control


with preparation.


the witness, you must know the facts of your case better than the witness. At a minimum, this means knowing - or be- ing able to access quickly - each fact that you can elicit from this witness and the citation for that fact, the deposition page and line reference for example. 2. Every phase of the trial, including


cross-examination, should start strong and finish strong. According to the psy- chological principles of primacy and recency, most jurors have a significantly better memory of what they hear first and last. Take advantage of these principles by starting and ending every cross-exami- nation with strong points that you know you can win.


3. As a general rule, you should avoid attacking or intimidating any witness dur- ing cross-examination.


Especially in


today’s anti-lawsuit, anti-plaintiff and anti-lawyer climate, you risk a great deal by not treating every witness politely and with courtesy. And, since a witness who is treated courteously rather than intimi- dated, is more likely to lower their defenses, your examination will probably be more effective. If, however, you must attack or intimi- date a witness, do not do so until you have elicited any favorable testimony that you expect from the witness. If you must at- tack, watch your jury very closely to make sure they have given you “permission” to


Fall 2001 Trial Reporter 27


go after the witness. We’ve all heard the stories about the lawyer who beat up a witness during cross and was about to go in for the kill when they looked at their jury and saw horror on their faces.


II.Control We’ve all experienced a witness who


gives long answers to simple questions. The witness appears to be controlling you and you fear the jury is listening to the witness’ every word. You of course want the jury to focus on your questions. How do you regain control of the witness with- out attacking the witness? Try the following techniques which I have found successful in maintaining control over difficult witnesses. Let’s say you are cross-examining a de- fendant driver whom you allege entered an intersection on a red light colliding with your client’s vehicle. You wish the witness to testify that they were looking


to their right at the moment they entered the intersection. With such testimony, you plan to argue in closing that the de- fendant could not know for certain that their light was green since they were not looking directly at the light at the precise moment they entered the intersection. Sounds easy enough right? Suppose you ask the witness “you were looking to your right as you entered the intersection - true?” The witness answers that he scanned the intersection as he approached the inter- section, that he slowed down, that he looked to his left, looked straight ahead, looked at the light and also looked to his right.


After the witness gives this rambling


answer, ask the witness if he remembers your question. If the witness says no, say “my question was simply that you were look- ing to your right as you entered the


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