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.” New lawyers shouldn’t cross-examine is a classic trial advocacy principle which is foolish, counter-productive, and one of many we will abandon..
The solution for new lawyers is to prepare ten times as much. A “new” lawyer never gets the experience needed to 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? The only way to obtain any trial experience is to do it.
He is right about one thing: cross is the most difficult skill to master. Cross examination is like combat, and it can’t be mastered in the classroom. No matter how much training you receive, you don’t fully comprehend it 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 you will 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?
- How 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?
I described cross-examination in my book: “The formula for successful cross-examination is simply stated: Use plain declarative sentences, add only one new fact per question, and lock in an answer before administering the coup de grace. Think of cross-examination as a series of statements by the lawyer, only occasionally interrupted by a yes from the witness.” Black’s Law p. 43.
The following are entries from my Black’s Law Blog that provides insight to cross examination:
Cross-examine Like a Psychopath
Cross-Examination: Teaching the Rules
One Question Too Many (Part 2)
Irving Younger’s Ungodly Ten Commandments
Cross Examining McQueary: Part 2
Cross-examining the Cooperating Witness (Part 1)
Conrad Murray: Cross-Examination
Cross Examination Under Control