The Fun of Cross Examination by Daniel M. Clements
Years back, my then 12-year-old
daughter accompanied me to a trial in Westminster. On the way home that evening in the car she commented: “Dad, you sure suck up to the jury.” I asked her what she meant and she replied, “You don’t ask the witnesses questions on cross examination. You look at the jury and ask them the questions.” Sitting in a courtroom for two days,
my daughter grasped the essence of cross examination. It is not about the witness – it is never about the witness – it is always about the jury. The fun and challenges arise from insuring that the jury sees the witness and hears the witness’s testimony in the light most favorable to your case.
During that trial, and at a deposi-
tion she also attended, my daughter confirmed something that I had long suspected. She understood little of the medicine. She could not follow the math involved in the doubling-time theory on the growth of cancerous tumors. She did not care that my primary expert’s résumé was 30 pages and the defense expert’s résumé was 80 pages. But she
grasped a real sense of right and wrong. She understood what was common sense and what was junk. She knew who she wanted to win. My daughter confirmed that juries do not analyze so much as absorb, as a single-cell amoeba eats. Our job, therefore, is to present cross examination geared toward impression and the big picture, more than torturing the trier of fact with details.
“While in law school I learned that cross examination is having a witness in a room with 10 doors. The attorney must go around and close nine of those doors, thereby forcing the witness to walk through the 10th
.”
Theories Professor Irving Younger of Cornell
became famous with his “10 Command- ments of Cross Examination.” By way of example, these rules included, among other platitudes, the following: be brief; never ask a question to which you do not know the answer; and avoid repeti- tion. While in law school I learned that cross examination is having a witness in a room with 10 doors. The attorney must go around and close nine of those doors, thereby forcing the witness to walk through the 10th
. We have all
heard colleagues comment after cross examination at depositions or trials say: “I killed him” or “I destroyed his credibility.” Obviously, murder and de- struction must be the purposes of cross examination. This section on theories will be brief.
Experience has taught that there are no rules and no theories that universally apply. If an attorney sits and prepares a
(Continued on page 20) 18 Trial Reporter Spring 2008
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66