Most courts will allow the plaintiff to call an adverse party under the Rules for cross examination. This same Rule will likewise normally permit a party to interrogate an unwilling or hostile witness by leading questions. If you are the plaintiff’s attorney, you will want to decide whether or not you should call the defendant under the Rules for cross examination as a part of the plaintiff’s case. Calling the defendant under the Rules for cross examination can be a real tactical advantage for the plaintiff’s attorney. Therefore, if you represent the plaintiff, do consider using this Rule to your best advantage. Is calling the adverse party necessary for the plaintiff to prove a prima facie case? If so, you should certainly plan on calling the defendant under the Rules. If you are the defendant’s attorney, you must prepare your client for being called for cross examination under the Rules.
For cross examination, you must first ask yourself whether you should cross examine a particular witness or not. In doing so, you should consider the goal to be accomplished by your cross examination. Affirmative purposes of cross examination should be to elicit and stress by repetition the favorable portions of direct examination testimony or to develop new matters not covered on direct which are favorable to your theory of the case. A negative purpose is to meet unfavorable testimony and to conduct a destructive type cross examination to impeach the witness and/or show how the witness can be mistaken. Cross examination should accomplish either or both of these purposes. If it doesn’t, why cross examine at all? Very often the best cross examination is no cross examination.
In preparing for your cross examination, first make a list of the probable key facts you expect the witness to testify to. Next determine your purpose for cross examining a particular witness. As to a specific witness, consider whether the witness is really all that important and relevant to the outcome of the case; whether the witness has substantially damaged your position; and whether the witness’s testimony is credible. Finally, you should assess your realistic expectations for your cross examination and what kinds of risk you need to take to achieve a successful cross examination of the witness.
Plan your cross examination by using the following key points of inquiry:
- You have a prior statement available from the witness which is favorable to your case;
- The witness may testify on direct examination inconsistently with prior statements that are available to you in the form of oral or written statements, answers to interrogatories, a deposition from other prior testimony, or from another witness;
- You will have a more credible witness testify that will otherwise refute this witness’s testimony and present your theory of the case; and
- That the facts to be testified by this witness are simply not consistent with common experience as to such matters or with other external evidence presented.
If you are going to confront unfavorable testimony by discrediting the witness, concentrate your questions on areas which will show that the witness may be mistaken, biased or prejudiced. If you are going to challenge a witness’s testimony, ask questions that will demonstrate that the witness’s testimony just doesn’t make sense with common experience; by itself; with the established facts of the case; or because of faulty perception, memory or communication.
If you are going to impeach a witness, first elicit any favorable testimony from the witness before going forward with your impeachment of the prior inconsistent statement. Before impeaching the witness, have the witness repeat the inconsistent statements or testimony from the direct examination. You repeat the answer in the very words the witness used to add dramatic effect. Then go forward with the impeachment questions. Once the witness has been impeached, STOP. Don’t ask the witness if he or she is a liar.
Professor Irving Younger in his excellent and outstanding lecture on the Art of Cross Examination has set forth his ten commandments for cross examination. Those rules are summarized as follows:
- Be brief, short and succinct. Never try to make more than three points on cross examination;
- Use short questions with plain words;
- Never ask anything but leading suggestive questions;
- never ask questions to which you don’t know the answer. If you don’t know, don’t ask it;
- Listen to the answers give by the witness;
- Don’t quarrel with the witness;
- Never permit the witness to repeat what was said on direct examination;
- Never permit the witness to explain anything away;
- Avoid the one too many question; and
- Save the ultimate point for your closing argument.
Finally, conduct your cross examination in a quiet, pleasing manner. Be polite. Begin your cross examination with a strong point and end it with a strong point. Will your cross examination be relevant? Will it be effective cross examination and have impact? If not, should you cross examine at all?