Ten Commandments of cross-examination[dagger], The

FDCC Quarterly, Spring 2003 by Pratt, Timothy A

III.

CONCLUSION

Reverting to lessons learned at the outset: Practice. Practice. Practice. Keep these commandments in mind until they become second nature. Once comfortable with the technique of cross-examination, it is easier to relax. Counsel will appear more confident, and the jury will sense this confidence. Such confidence will make counsel more effective in every phase of the trial and increase the chances of winning the case which, after all, is the reason for this business.

[dagger] Submitted by the author on behalf of the FDCC Trial Tactics Section.

1 Perhaps the late Irving Younger prepared the best-known version of the Ten Commandments of Cross-examination. See Younger, The Art of Cross-Examination, ABA Monograph Series No. 1 (ABA Section on Litigation 1976). Younger's Ten Commandments are: (1) be brief; (2) use plain words; (3) use only leading questions; (4) be prepared; (5) listen; (6) do not quarrel; (7) avoid repetition; (8) disallow witness explanation; (9) limit questioning; and (10) save the ultimate point for summation. These are good general rules, but this article makes an effort to supplement Younger's commandments and build on them. Some overlap, though minimal, is inevitable.

2 The risk of extensive preparation is the tendency to show the jury all that counsel knows. That can lead to a lengthy, tedious cross-examination which does not capture the attention of jurors. Preparation, therefore, includes not just learning all that one can, but distilling the key points and determining how to convey them.

3 Internet search engines are becoming more sophisticated and far-reaching. Simply typing in the expert's name in a search engine may lead to a number of "hits" in various categories. These would include news reports, published cases, administrative agency submissions, and more.

4 The case in question was Anderson v. Bristol-Myers Squibb, Civ. No. H-95-003 (S.D. Tex. 1998). The twenty-five-page opinion is not published, but it is available from the author or from Gene Williams, an FDCC member who was also involved in the Daubert hearing.

5 An ancillary advantage to having the witness provide the answer, rather than supplying a sterile "yes" or "no" response, is to increase the odds that the witness will appear evasive. If the question is buttressed with accurate information, and the witness simply concedes the point, the witness may appear candid and credible. Making the witness provide a more narrative response to points that must be conceded may cause the witness to omit or de-emphasize certain facts. The questioner then is placed in the position of identifying the incomplete nature of the witness's response, perhaps leaving the impression with the jury that the witness is not a reliable fact-giver. All of this must be keyed to the witness in question. There are some witnesses who should be granted little latitude on cross-examination.

6 Increasingly, trial judges are creating their own rules of courtroom behavior to supplement the general provisions of court decorum in a particular jurisdiction. Some of these provisions can be onerous, imposing time limits on witness examination and otherwise restricting the courtroom latitude of trial attorneys who have become accustomed to a more generous approach. Some of these rules may affect what a trial attorney is allowed to do on cross-examination.