The Tools Of Trial Advocacy: Skilled Cross-Examination
Cross-examination has been described as the “greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367, p. 32. Any good trial attorney must be skilled at cross-examination. This skill is necessary for anyone who wants to be a true attorney-advocate.
Some say those attorneys who are best at cross-examination aren’t the most charismatic orators, but the hardest workers. They prepare for cross-examination as if they are preparing for a marathon race and observe the following course of action:
- Reviewing and examining every document, transcript, email, and writing;
- Listing the evidence available for every subject and cross-referencing each evidence source; and
- Preparing detailed sequences of questions for each fact to be proven.
This entails hours of work, especially formulating a single line of questioning. However, the benefits are substantial. The attorney must know the facts better than the witness and be prepared if the witness gets off track or tries to conceal the truth. Once the facts have been gathered, the questions for the witness must be drafted.
Next, observe the following three rules:
- Ask only leading questions
Leading questions are a simple statement of a fact with an implied question mark at the end. Questions that begin with “how,” “what,” “when,” “why,” or “where” are the essence of non-leading questions and should be religiously avoided.
- Establish no more than one fact per question
Compound questions, such as “you saw the blue car approach the intersection on January 15”, are the enemy of clarity.
- Ensure each question leads to a specific goal
Questions without purpose waste time.
The preparation for cross-examination is a monumental task. Lawyers need a system for organizing information in order to draft an efficient cross-examination scheme. As 2020 approaches, computerized organization systems are available that enable facts, dates, witnesses, and key issues to be cross-referenced. This will allow attorneys to prepare more quickly, effectively, and efficiently for cross-examination.
Discussions with legendary trial attorneys, F. Lee Bailey and Gerry Spence, inspired founders John Patrick Dolan and Irene Garcia Dolan to start the California Desert Trial Academy. In 2012, CDTA opened its doors featuring a more practical and modern approach to legal education. At CDTA, not only do we train, educate, and develop students to be exceptional attorneys, we also train them to be exceptional trial advocates. Call us today at (760) 342-0900 or find out more online here.