“Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.”
– JOHN HENRY WIGMORE
Everyone quotes the famous first sentence from Wigmore and unconsciously ignores the second. As Irving Younger once said more defendants end up in the penitentiary due to bad cross-examination than any other part of the trial. An exaggeration no doubt, but unfortunately cross- examination is surrounded by a mass of cliches and half truths which lead the lawyer to disaster. And speaking of Younger, his 10 commandments of cross examination is one of those disasters. When first starting out, I went to a live performance of the so-called commandments. Boy was I impressed. It was a great lecture, a great show. Younger was very dynamic. But the lessons are impracticable and in the main worthless. In a later post I will illustrate why. But today I want to start with the basics.
Before using a difficult skill, whether in sports or law, you must grasp the fundamentals and practice them religiously. We all want to jump immediately into the sexy parts, but until those fundamentals have become second nature, we will court disaster. So it is with cross. The first fundamental is preparing your arsenal.
I created what I call the folder method. All it takes is a manila folder. Start by writing one fact in the tab. Then put into the folder every document, photograph, deposition or transcript page that in any way refers to, disputes or proves that one fact. Now you are armed and ready to start the process.
I don’t like writing out questions. I find it becomes a straitjacket. I used to have legal pads full of questions but what would I do when the witness goes off my script? I need a lot more flexibility. So I use the final product to guide me. For example, I take a deposition page and highlight what I want to impeach the witness with. I know that is my final destination. Once on my feet I ask questions pointing to that end, but I am not constrained to ask only the questions I have written out. I know where I am going because as Yogi Berra noted: “If you don’t know where you are going, you will wind up somewhere else.”
While I listen to the witness’ direct exam I can move my folders around and change the order of my cross. Or I can easily take out a folder that is not needed. And more importantly I don’t have to flounder around looking for a document to impeach the witness. Five seconds hunting for a document in a silent courtroom is an eternity. It is right there in my folder. I have one highlighted with the important lines and at least 3 copies to give the court, opposing counsel and the witness. It works smoothly, most of the time. Today with electronic documents and flat screens you may not need the copies but I have them anyway just as a crutch.