Ask Judge Smith: The Art of Cross-Examination
Q. Judge Smith, what advice can you give about cross-examining witnesses? — Tate
A. I have spent thousands of hours trying to master the art of cross-examination, and I’m still learning. Let me give you a shortened version of what I teach to law students.
The purpose of a discovery deposition is to learn what the witness knows. Do your homework and be prepared. Learn everything about the witness and the case before taking the deposition. Ask open-ended questions to discover what the witness knows. Follow up with ever-tightening narrower questions to pin him down on the specifics.
If you are thorough and leave no wiggle room, the witness cannot change or add to his testimony later. If he does, you will expose his inconsistencies. The goal is to eliminate surprises, firm up what the witness knows and how he knows it, and reveal any prejudices.
Armed with this knowledge, you can safely ask limited, leading questions at trial. The witness must readily agree with you or contradict his prior sworn testimony. Either way, it’s a win for you.
The late Irving Younger was a well-known prosecutor, judge, and law professor. Let’s cover his 10 commandments for cross-examination, and I’ll also put my spin on them.
- Be brief
Don’t cross-examine the witnesses that do not hurt your case theory. Keep the length of your cross-examination to a minimum.
- Use plain words and ask short questions
Don’t use legalese. Rarely use a three or four-syllable word if a one or two-syllable word will do. Limit the length of your questions to no more than 20 words.
- Ask leading questions
Your questions should suggest an answer that helps your case.
- Be prepared
You should already know what the witness will say. Be prepared to expose any change of testimony from his deposition.
- Listen to the answer
Don’t be so focused on your next question you fail to observe the witness’s body language and listen to the witness’s answer. Otherwise, you may miss a golden opportunity to pivot and score points.
- Don’t quarrel with the witness
Jurors will sympathize with a fact witness over a lawyer, so don’t browbeat or argue with the witness. Be clear, firm, and polite. Make sure that the witness answers your questions or loses face by his stubborn refusal to do so.
- Don’t ask the witness to explain
It’s a fool’s errand to ask unfriendly witnesses to explain the evidence. Successful lawyers gather essential facts and explain what the evidence means during their closing arguments.
- Don’t allow witnesses to repeat their answers
Damaging testimony is more likely to stick if repeated.
- Limit cross-examination
The best cross-examinations zero in on no more than three key points. Don’t carry on for too long, or you’ll bore the jury or step into a punch.
- Persuade during summation
Don’t try to persuade an opposing witness during your cross-examination. Instead, extract testimony you can use during your closing argument.
Keep in mind that these tactics might not work as well if applied to personal relationships!
Judge J. Layne Smith is a bestselling author and public speaker. He serves Florida’s Second Judicial Circuit.