Effective Cross Examinations: Sowing the Seeds of Doubt
We’ve all seen legal thriller movies or TV shows where the slimy defendant finally takes the stand and on cross-examination the brilliant heroic attorney asks just the right questions, yielding the big bomb drop of testimony. “YOU CAN’T HANDLE THE TRUTH!” the defendant exclaims, implicitly revealing to the jury the truth of what he’s been accused of all along.
Cross examinations are when adversarial witnesses are examined not by the party offering the witnesses, but instead by the lawyer for the opposition. On cross, the attorney gets to ask pointed leading questions to ferret out subtle but nevertheless important points, and can even confront the defendant with documents that contradict or cast serious doubt on the witness’s testimony.
In practice, cross examinations are seldom as flashy or dramatic as we are used to seeing them on the movie screen, but they nevertheless can be a powerful and fruitful ground for generating important testimony. Why? Because on cross, the opposing attorney has a chance to attack the witness’s testimony–including the basis for that testimony–and reveal gaps and problems for the jury to consider.
While the direct examination is an exercise in careful and deliberate narrative building, with painstaking attention given to the testimony details to be delivered, cross examinations are better delivered in the moment. A cross examining attorney needs to be extremely well versed in the facts of the case; however, rather than having a specific list of questions, the attorney needs to be ready to make snap decisions about the right questions to ask that will get to the bottom of the testimony. This is because it can be hard to predict exactly how an adverse witness is going to testify.
Short of a smoking gun reveal (such things are very rare in practice), a good cross examination will sow major seeds of doubt in the mind of the jury. While good cross examinations are ultimately no substitute for good direct examinations of the main friendly witnesses, they can and often do make a big difference. This is especially true in our civil courts, where a party need only prove their case by a preponderance of the evidence. Those seeds of doubt can easily turn a closely contested case in your favor.