Lawyers seem unable to master the art of cross-examination. I hold Wigmore responsible for this failure by boldly proclaiming that: “Cross examination is the greatest engine for ascertaining truth.” Perhaps in some alternate universe, but not this one. The engine works better in theory than practice. This lawyer ineptitude explains why Irving Younger’s lectures on cross-examination were so popular in the ’70s and ’80s and lives on in videotape.
Younger makes cross-examination seem easy. Just follow his commandments and you will achieve success. If only it were this easy.
Irving Younger was a great teacher. He is safely ensconced in the pantheon of great CLE speakers along with Terry McCarthy. I had the good fortune of attending a live Younger lecture on trial advocacy including the so-called ten commandments of cross-examination. Younger made the day fun and had a wonderful collection of stories and illustrations for his points. He had to do it all orally because this predated the great use of demonstrative evidence we take for granted today. But the human voice is a great storyteller and he did a marvelous job without the crutches of video and audio.
His hearsay lecture was first class but it was far surpassed in popularity by the ten commandments. By now every law student and trial lawyer has watched a tape of these lectures and there has been an entire body of trial literature written as commentaries on them. They are quoted ad nauseam by trial lawyers too lazy to formulate their own ideas; they just accept it as a given. As a famous editor once said when there is a conflict between the legend and the facts, print the legend.
One of the basic points I make with all my law students is to question everything and look for the reason behind any rule. A lot of accepted wisdom in trial advocacy doesn’t always work. Don’t be afraid to reject it if it doesn’t work. Quoting a source is a lazy way of thinking.
Quite frankly I didn’t think much of the commandments then and even less now though there are a few kernels of truth in them. First, I doubt the efficacy of any scheme that fits so neatly into the number ten allowing the biblical metaphor. It is too cute. But Younger probably figured that would make them popula,r and he was right about that. Second, to break a commandment is a mortal sin. The problem with calling them commandments is that they lose flexibility. Any of these so-called commandments should be broken if the occasion calls for it. None of these rules are forged in steel.
Here are Younger’s Ten Commandments of Cross-Examination:
1. Be brief
2. Use plain words
3. Ask only leading questions
4. Be prepared
6. Don’t get into a quarrel
7. Avoid repetition
8. Disallow witness explanations
9. Limit questioning
10. Save the main point for the summation
Let’s see if they hold up today:
1st – Be brief
Brief keeps you safe but also denies you any rewards.
Younger makes the point that the jurors can only absorb a finite amount of information so an ideal cross-examination should have no more than three points affecting the witness’ reliability. This is ridiculous. Perhaps one can be brief if it involves a minor case with a short witness but it is otherwise unworkable and bad advice. When the witness batters you and destroys your case what choice do you have except to go to war?
The best example of brevity not working comes from Younger himself:
He represented the Washington Post when it was sued for libel by the president of the Mobil Oil Corporation. The plaintiff called a trucking executive to the stand. The trucking executive gave testimony helpful to the plaintiff. Younger’s cross-examination consisted of four questions:
Q: Mr. Hoffman, did you just get into Washington just about an hour ago?
A: About an hour and a half, I would think.
Q: Did you come up from Florida?
A: No, I did not.
Q: Where did you come from?
Q: How did you get from Indianapolis to Washington?
A: On the Mobil corporate jet.
“It was a hand grenade in the courtroom,” Younger enthused, “the kind of moment a trial lawyer savors for the rest of his life.” Okay, so the plaintiff had the witness flown on its private jet to testify. This was one of the world’s richest corporations and no doubt this is how they did business, especially when a witness was needed quickly. This was not a great benefit to the witness since he probably didn’t want to testify anyway. So the point is dubious but to make it the only impeachment of a major witness? Bizarre at best.
The best evidence of why this is bad advice comes from his trial. The jury returned a substantial plaintiff’s verdict although Younger finally prevailed for his client in the court of appeals, although as I recall Edward Bennett Williams did the oral argument.
My own experience shows this point doesn’t work. I cross-examined a witness whose direct took four days. Do you think I could quickly hit three points and sit down? Imagine a complex commercial fraud case. The jury doesn’t have to understand every point you make in the cross. You will take the best points and illustrate them in the final argument. In fact, I continue to cross-examine until I get enough to make my case in the argument. I once cross-examined an IRS case agent for five days trying to squeeze out enough material to make my defense. It was slim pickings but it made a difference.
The purpose of cross is to counter the impact of direct. You must make certain points no matter the time involved. On the other hand if the examination is lengthy and tedious without any goal or at least a goal the jury can see then it is self-defeating. “Know your objectives” is a better way to phrase this. The trip will take time. You don’t start with the conclusion — you build up to it. You set up the witness. Like cross on a police report. You need to lay a foundation how sacred the report is in the police investigative files on the case. Without that the punch line is meaningless. The jury has to understand the point.
Despite my complaints here is a cross of an expert I always wanted to use:
Q. Dr. Smith, you are being paid $800 an hour to testify here today?
Q. Well then, I won’t take another minute of your time.
2nd – Short questions, using plain words
I agree wholeheartedly with this one, but it is not unique to Younger. Everyone who writes on cross-examination suggests simplifying the questions. The idea is to cut out the unnecessary filler words like adjectives and adverbs which elongate the question and allow witnesses to escape answering it directly. They will quibble over the modifiers if your question is vague. So make it a simple plain sentence that they have to confront. And cut out the unnecessary circumlocutions like “vehicle” instead of “car.” Use words like you do in conversation, or as Terry McCarthy teaches like you would in an Irish bar. There is nothing like short Anglo-Saxon words.
3rd – Always ask leading questions
Once again hardly earthshattering advice albeit accurate. This is how the lawyer keeps control of the witness. As I wrote in my book Black’s Law, cross-examination is a series of statements by the lawyer occasionally answered with a yes by the witness. I don’t pretend to be the inventor of this basic idea and neither is Younger.
There are lawyers who believe that an open-ended question, a “why” question, can be appropriate at times. The witness can appear evasive when failing to fully answer a question and thus not reliable. Also some believe that insisting on a one-word answer from the witness which does not have a natural one word answer will cause you to lose credibility with the jury. I still think that it is too dangerous and not worth the risk. But it is open to debate in certain limited situations.
4th – Do not ask a question to which you do not know the answer
Younger is repeating a long held but inaccurate cliche. It would certainly be nice if we knew every fact of a case or every fact a witness knew, but we don’t. Younger warns that if a lawyer does not know the answer and there is any possible answer that could hurt the lawyer’s case, that is the answer the lawyer will get. I agree that a little paranoia is good here but it can’t rule the situation.
I specialize in federal criminal cases which allow very little discovery before trial. This is why the federal government increasingly uses the criminal law to enforce its policies. You find out who the witnesses are when they are called and you learn what they had to say when you hear it for the first time from the witness stand. There is a premium on being able to stand up and launch into your cross examination after hearing the direct, concentrating on what the witness said and then using your wits, and get on with it. There will always be surprises and events or testimony you didn’t anticipate. According to Younger, federal criminal lawyers should forego cross-examination because it is too dangerous.
While we don’t know all the details, we do have an idea where the testimony will be traveling although we won’t know its exact course. It is common to find yourself in a situation where the witness has raised an issue that if left unexplored will be an admission you have no answer for. The best you can do is be as prepared as possible. Having read all the documents and investigated as much of the witnesses’ backgrounds as possible then figuring out the best course of action.
Get every possible bit of information on the witnesses. Study their credentials, certifications, correspondence, reports and websites, along with any other data related to the subject matter of the case. Over-prepare allows you to anticipate most of the answers, even though you can’t “know” exactly what the answer will be. Often in blind cross-examination, you do not know the answer to the question. But when you ask about the obvious, it does not matter what the answer is.
Ask low-risk questions that call for facts, rather than opinions. Only ask questions when you know what the answer should be, based on logic, context and common sense. The easiest way to control a witness is through the use of exhibits. Accordingly, use your documents to weave your testimony on blind cross-examination.
Q. Did you write this document?
Q. When you wrote it was it true?
No witness will deny these questions. Then highlight the substance of the document and get the witness’ own words in writing in evidence.
Q: You wrote this letter, didn’t you?
Q: And when you wrote that “I know that you tried to accurately report all your income on this transaction,” you believed that to be a true statement, didn’t you?
By reading the statement into the record, you are driving home its content. It doesn’t matter what the witness’ response is. What does matter is getting the witness’ own words in writing into evidence.
The prevalence of e-mails has made this far simpler. Witnesses do not talk to each other, they e-mail, and the best part is that they spontaneously write e-mails without hesitation and without reflection on the consequences.
Documents tell the story at any trial. So go carefully through the documents, and lay them out like a long mosaic and weave them back together as you tell your story.
Francis Wellman in the Art of Cross-Examination put it better than Younger when he wrote, “A lawyer should never ask a witness in cross-examination a question unless in the first place the lawyer knows what the answer would be or in the second place didn’t care.”
5th – Do not allow the witness to repeat his direct testimony
Younger advises that cross-examination is not an opportunity for a witness to emphasize and strengthen his or her points. Good advice.
There is one example in the literature where asking the witness to repeat his direct was effective. In the Triangle Shirtwaist Factory fire trial, Max Steuer, a famous New York criminal lawyer, destroyed the credibility of Kate Alterman, one of the survivors, by asking her to repeat her story several times. She used almost the same words each time allowing Steuer to argue to the jury that the witnesses against his client had all memorized their testimony perhaps at the urging of the prosecutors.
Except for this once in a lifetime opportunity it is better not to attempt this.
6th – Do not permit the witness to explain his answers
Younger says the examiner must prevent the witness from wandering from the direct question asked and add damaging comments. Of course I would love to be able to do this, as all trial lawyers would. Unfortunately Younger fails to allow for the third party involved in the examination – the judge. As soon as you try to cut off the witness who is demanding to explain the friendly judge always tells the witness to answer the question first then explain. Gee, thanks for nothing.
The rule stipulates that the witness shall only answer the question asked, but judges rarely enforce it. Some witnesses insist on repeating their side of the story no matter what you do. Clever witnesses like experts and cops have an agenda and will take advantage of judge’s laxity to beat you at your own game.
The classic advice is to ask the judge for help since the answer is non-responsive. Bad idea. This sounds like whining and defeat. Instead embrace the fight. Let the witness refuse to answer simple questions. Keep repeating the same question until you get an answer. Let the jury see how biased they are. You will score more points with that approach than whining about the rules of evidence. And any begrudging admissions you wrest from the witness will seem even more valuable since the witness is so obviously hostile.
And you never know a witness may claim not to know what the meaning of “is” is.
7th – Listen to the witness’ answers
Of course you are listening closely to the direct examination in order to use it on cross. But why listen to the answers on cross? Aren’t they all mono-syllabic and just agreeing with you? See commandments three, four and five. So there shouldn’t be anything to listen for if you follow them.
8th – Do not quarrel with the witness
Younger claims if you get into arguments with a witness, the jury will likely side with the witness. I generally agree with the concept, but I would call it “don’t be a jerk.” Tone down the sarcasm (hard to do!). Don’t lose your temper. Remember the aphorism: “Those whom the gods wish to destroy first make angry.”
But also don’t overlook the benefit of some conflict. The jury expects drama and conflict on cross. They expect to see an epic battle between lawyer and witness. Don’t disappoint them by losing it.
9th – Do not ask the “one question too many”
Younger explains that this commandment is a corollary of his other commandments such as the prohibition against asking questions before knowing the answer. However, he believes the damaging impact of an unwise additional question is potentially severe enough to merit special mention.
The illustration Younger uses to make this point is well known to every lawyer. Abraham Lincoln was defending a man charged with assault and battery and manages to get the witness to admit that he never actually saw the defendant bite off the nose of the victim. However he then asked the fatal question:
If you didn’t see him bite off the nose of the victim, how do you know that he did?
That’s easy, the witness responds because I saw him spit it out.
This is a great story and it is repeated whenever this issue is discussed. There are two problems with this story. First if Lincoln didn’t ask the one question too many, don’t you suppose the prosecutor would on redirect? And when the prosecutor asks this question, it deflates your entire cross and you also lose credibility.
Second is the rest of the story as Paul Harvey used to say. Lincoln wasn’t blundering but was laying a trap. He then asked the witness how he could see the event because it was night and he was quite a ways from the fight. He answered: “By the light of the full moon.” This also appeared to be one question too many but then Lincoln produced the 1857 Farmer’s Almanac which proved there was no moon at all that night.
The real commandment should be “know when to quit.” Recognize the battle is over and you either won or lost. Be in tune with what they jury is feeling about things. If you have won, there is no need for overkill. Don’t bring the dead back to life. On the other hand, if you have lost then have the judgment to admit defeat and sit down.
10th – Save the ultimate point of your cross for summation
He bases this concept on his belief that a juror who understands the points made on cross-examination but does not grasp how they fit the lawyer’s case is likely to pay attention through the rest of the trial to satisfy this curiosity. This seems a slim reed for such a commandment. While I don’t believe the cross examination should become a substitute for your final argument, it is a place to reinforce your themes. We can make major points on cross examination. We can use questions to tell our client’s story. Questions that support your story.
It is rare to make a hidden point on cross examination that neither the witness nor your opponent realizes. Only in the movies can the trial lawyer suddenly and with great drama reveal it for the first time in final argument. Jurors form impressions and fix opinions as the trial progresses and they are difficult to dislodge in final argument. So you need to persuade as the trial goes on. So make the points you can when you confront the witness head on and you don’t save anything for argument. Cross examination is when the jury is listening carefully so take advantage of that fact.
A good example of this comes from my good friend Gerry Spence. Here is an excerpt from “Exposing the Hidden Truth–Cross-Examination,” in Gerry Spence, Win Your Case 168-222 (New York: St. Martin’s Press, 2005):
“Cross-examination is simply storytelling in yet another form. Cross-examination is the method by which we tell our story to the jury though the adverse witness and, in the process, test the validity of the witness’s story against our own.” [Spence, Win Your Case, at 169] [“When the lawyer gets up to cross-examine he should have a significant story in mind that he wants to tell with this witness.”] [“Basic cross-examination is nothing more than a true-or-false test administered to the witness, in the course of which our story, as it concerns that witness, is told, question by question, to the witness. It makes little difference whether the witness answers yes or no. Question by question, our story is being told. It’s for the jury to determine whether the witness is telling the truth when he denies the statements contained in our questions. If we took each statement out of our cross-examination and joined them, we would have presented our story for that witness.” Id. at 170] [“[B]efore we begin the cross-examination, we must have in mind the story we wish to tell through this witness. We have prepared the story for each witness and we’ll not muddle around asking a bunch of meaningless questions in order to hear our own melodious voices, nor will we repeat the questions we heard on direct examination, except where it is necessary as foundation for a well-prepared cross. And, at last, we ask ourselves, do we want to cross-examine this witness at all?” Id. at 218-219
Quite frankly Gerry’s writings and essays on trial advocacy are superior to Younger’s. Gerry is more nuanced and more user friendly.
So what conclusions can we draw from re-reading the Ten Commandments?
To start with, there are no panaceas. There are no rules which always guarantee success. There are no commandments handed down from on high. Each trial takes on its own life, is tied up in its own facts, and each witness is different. We humans don’t fit nicely into categories. Keep your wits about you and make the tactical decisions on the ground. There is a premium on the ability to think and react quickly. Younger’s general ideas give you a context to work from but specific rules which always work don’t exist.
As Julius Byron Levine noted:
“No two trials are identical, even if they are both trials on possession of cocaine charges, or even if one is a retrial of the other. The witnesses never testify identically, by word or demeanor. The lawyers never phrase their questions identically. Whoever tries to argue this month’s trial with last month’s summation will be as stale and unpersuasive as yesterday’s coffee and toast.”
Despite all this commentary I can tell you one rule that always works: One doesn’t learn how to cross-examine a witness by reading a paper or watching a lecture. The only way to learn cross is by doing it. Practice, practice, practice. By conducting examinations. Mock or real.