PRINT PAGECross Examination
Mark R. McGarry, Jr., writes in Litigation magazine: "It must be said that very few new lawyers (almost none) have the skills necessary to succeed at cross-examination." According to McGarry, you should think about doing the smart thing, which is to say "No questions," since "you just can't improve your case with your opponent's witness." This is ridiculous. New lawyers just shouldn't cross-examine? Crazy.The solution for new lawyers is to prepare ten times as much as a more experienced lawyer so mistakes are avoided, otherwise, a "new" lawyer never gets the experience needed to ever do a cross-exam under Judge McGarry's point of view. A new lawyer can give away the case with a poor opening statement too, so maybe we should just have new lawyers waive the right to do openings under Judge McGarry's theory. By the way, I note that the judge thinks its OK for new lawyers to try cases so long as they buy his book and follow his advice.
He is right about one thing: cross is the most difficult skill to master. Cross examination is like combat, and can't be mastered in the classroom. No matter how much training you receive, you don't fully comprehend what it's all about until the first bullet whizzes past your head. So you must experience it to learn it. Few lawyers ever master this skill. As Irving Younger joked, more clients go to prison as a result of his lawyer's cross than any other part of the case. So I don't expect you to do a brilliant cross, yet you will try. Only through trial and error will you learn cross. I will ask you the following:
- What were your goals with each line of questions?
- Did you just repeat direct exam?
- How was your tone? Did you get angry and yell at the witness?
- Were you able to get favorable facts from an adverse witness?
- Did you probe the weaknesses of the story? Those parts that are illogical, unreasonable, inconsistent or exaggerated.
- Do you understand how to ask questions? We will work on creating leading questions, using narrow statements, and avoiding ambiguity. This includes the concept of adding one fact per question, using short plain unambiguous words.
- Every question must have a purpose to it. I will sometimes ask what your purpose was in a particular question. We will also discuss the choice of tactics in the cross.
- Which methods of impeachment were used, such as bias, inconsistent statements, inadequate perception or contradiction by other evidence both oral and physical?