Ten Commandments of cross-examination[dagger], The

FDCC Quarterly, Spring 2003 by Pratt, Timothy A

I.

INTRODUCTION

Much has been written about the "art" of cross-examination. Not all of it, though, involves art. Some of it involves natural talent, but most of it involves hard work. In truth, three factors combine to create this "artistic" success - personality, presence and persuasion. These traits are often manifest in the ability to think and react quickly. But something else is involved as well - something that trial lawyers often hold in short capacity. That something is humility, and the ability to know when to quit. The art of cross-examination involves all of these traits, and more than a little luck.

This article is intended to provide yet another iteration of the Ten Commandments of cross-examination.1 Here is the caveat, however - one does not learn to be good at cross-examination by reading papers. The successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally. In this era, when there are too few trials to satisfy so many eager trial lawyers, cross-examination techniques can be practiced in depositions. The trial lawyer must learn to get the "feel" of a good cross-examination; to develop a personal cadence and style. The trial lawyer must learn as well to adapt to particular witnesses and different cases. But he or she learns by doing. In all this, of course, having some general rules in mind will not hurt. Hence, the "Ten Commandments."

II.

THE COMMANDMENTS

A. The First Commandment: Thou Shalt Prepare

Of course, preparation is essential, but it would be surprising to learn how many trial lawyers fail to observe this basic principle. A lawyer must prepare in order to know what topics to cover. A lawyer must prepare because the jury will assess his or her depth of knowledge and commitment to the case by the demonstrated ability to handle the details of cross-examination. If the lawyer appears vague on the details, the jurors may conclude that they, too, should be unconcerned about the finer points of the case. Thorough preparation also will ensure that the witness appreciates the lawyer's competence. Under such circumstances, the witness will be less willing to take advantage of the lawyer's lack of first-hand knowledge. It takes hard work, but dividends flow.

For a plaintiff's cross-examination, preparation involves digging into every relevant background fact. This includes employment history, medical history, prior statements, and every other important detail. The cross-examination of the plaintiff can be a pivotal point at trial. Jurors tend to pay special attention to this encounter because they recognize that it focuses the essential controversy of the case - a battle between the plaintiff and the defendant. A prepared and effectively accomplished cross-examination of the plaintiff, perhaps more than any other event at trial, can increase significantly the chances of a defense verdict. Unfortunately, an unprepared and poorly accomplished cross-examination can produce the opposite result.2

Because many cases are decided by expert testimony, an attorney should prepare thoroughly for the cross-examination of an opposing expert. Generally, significant amounts of information must be gathered in advance of cross-examination. As a starting point, it is important to master the deposition taken in the case at hand because that deposition represents the greatest opportunity for impeachment. However, one should review depositions of the expert taken in other cases and be prepared to use them as well. Experts sometimes forget what they say from deposition to deposition; this is particularly true for the professional witness. In addition, expert witness databases are available from which to gather background information on a particular expert. It is also a good idea to contact lawyers who have encountered the expert. This creates an opportunity to build upon the good efforts of others. Finally, it is important to obtain all of the expert's prior writings and to subpoena the expert's entire case file, including correspondence and other materials exchanged with opposing counsel or third parties. In this regard, check for advertisements or expert listings and carefully review all aspects of the expert's curriculum vitae to ensure that he or she has been accurate in every material respect.

One of the new and critical resources for information on an expert is the internet. Many experts maintain their own web pages. Several, for example, will list numerous areas of "expertise" to advertise their availability - a fact that may diminish their credibility before the jury. Several have questionnaires that can be completed by attorneys or potential plaintiffs to allow them to "evaluate" a case. If the expert is employed by an academic institution, the institution's web pages can be searched to learn what courses the expert may be teaching. Many experts also are listed in internet expert databases. Some even participate in newsgroup discussions.3