Litigation 101 Cross Examination

An introduction to cross-examination

Written by: Thomas A. Downie April 1, 2021 Read Time: 5 min

This post is in a series that offers techniques and tips when it comes to Cross Examination. Here is the full list:

The elderly criminal defense lawyer rose to cross-examine.  He was conspicuous, standing alone in his dark-blue suit.  A gruff-looking man—the defendant—sat at the table beside him, and seemed bewildered.

I’d stolen an hour to watch a trial in common pleas court.  The administrative office on the eleventh floor maintained a list for the “court watchers.”  Retirees, mostly—men and women who came to the Justice Center every day to watch trials.

I wouldn’t have chosen a rape case, but it was the only one in progress that afternoon.  I’ll confess a bias against the accused in rape cases.  I knew I could defend a murderer, even a guilty one, when the chance came.  But a rapist?

I entered the back of the courtroom quietly.  I spotted a court watcher—she was recognizable by her age, her casual dress, the pad and pen in her hands—and slipped into the pew beside her.  I whispered a question, wanting her view of the case, and she said, “I’m not sure about this one.” Police had been called to a domestic argument in an apartment, and they found a younger woman, a daughter, in the next room.  The court watcher was “not sure whether the crime actually occurred.”

The daughter took the stand.  She was still in her teens and jurors were protective of her, on edge in their seats.  The defense lawyer slowly circled the courtroom as he questioned her.  Some physical impairment gave him a halting gait and his questions matched his slow pace.  He rarely looked at her, and never at the jurors, though I could tell he was acutely conscious of them.  He probed gently, testing the young woman’s story, never once sharpening his tone.

“Small steps,” he told me afterward.  “Ask a question, then listen to the response.  The response will tell you what you can ask next.”

Matters of Style

William Kunstler’s defense of the Chicago Seven convinced me to become a lawyer.  We go to school, we pass the bar, then a niche finds us.  My good fortune was to land in a niche that coincided with my vision.

I had some aptitude for litigation and wanted desperately to learn cross-examination.  Books were helpful, watching trials more so.  Later, a firm sent me to the week-long Trial Advocacy College at the University of Virginia School of Law, which was excellent.  One of the instructors was Terry MacCarthy, the federal public defender from Chicago. He taught us how to “tweak” evasive witnesses.

Mostly I learned from doing, as we all do.  Depositions, and when I was lucky, actual trials.  We find methods that work for us and incorporate them into a style.

A lawyer at my first firm was a bulldog.  Pressing, intimidating, bludgeoning the witness.  Watching him taught me the value of persistence.  Contrast that with the elderly lawyer in the rape case.  Gently probing, it would seem to a lay person.  In reality, a clock winding tighter.

I couldn’t describe my own style, much less recommend it.  I don’t ask leading questions, or so I’m told.  I’m still surprised when I read a transcript and see that I spoke in understandable sentences, or utterly failed to.

For me, cross-examination is a conversation conducted under rules of reasonableness.  I try to ask fair questions.  In return, I expect responsive answers.  Truthfulness isn’t the issue, at least not directly.  Witnesses protect their own self-interests, or those of the party with whom they perceive themselves to be aligned.  Our craft as cross-examiners is to neutralize those natural defense mechanisms.

Techniques and Transcripts

This blog offers tools you can use within your own style.  Whenever possible, I’ve illustrated them with transcripts.  The techniques are basic and should be universally applicable.  Focusing on the elements of claims.  Using foundation stones—evidentiary documents or prior statements—to overcome inertia or deception.  Leading the witness.  By the form of your question, sometimes.  But always by your expression, your tone, the rhythm of your inquiry.

Some posts will address special situations.  Dealing with witnesses who are evasive or dishonest.  Questioning experts.  Cross-examining witnesses about their state of mind.  I’ll address the psychological hurdles as well—for me, those could be daunting.  Aggressive opponents on the other side of the table.  My own anxieties as tensions rose.  Learning to withstand the tensions, or use them.  Above all, the fear of losing control of the cross-examination and failing.

The Case of the Holocaust Diaries

The first posts will take you into a case I tried involving diaries from the Holocaust.  The trial transcript illustrates important cross-examination techniques.

If you have questions or comments, or would like to share an idea of your own, please contact me.  You can reach me by phone or email.

About The Author

I’ve litigated class actions and other complex cases for many years, roughly divided between plaintiffs’ practice and defense representation. My undergraduate degree is from Penn State University and I earned my law degree, cum laude, from Cleveland-Marshall College of Law. In my senior year I was elected Editor-in-Chief of the Cleveland State Law Review.