It is undoubtedly the most technically difficult skill an advocate has to master. Cross examination, above all other parts of the trial lawyer’s duties, has the greatest scope and power to shift the dynamics of a trial or change the outcome of a case.
The cross-examining advocate must account for a myriad of factors that stem from the great fluidity of trial litigation with its wide range of potential outcomes and competing influences, including the prejudices of a jury, interventionism of the judge, personality of the particular witness, perceptiveness of opposing Counsel, information hidden within documents, and the overall merits of the case. All this and more must be assessed often in the space of just a few moments before asking the first question.
It is a feat of quite some complexity that nevertheless must be made to look so simple that the questions flow with apparent ease as the advocate takes witnesses from where they want to be to where the advocate needs them most.
No wonder then that cross-examination has provided some of the most memorable moments in legal movie history from Charles Laughton’s Classic (if now slightly dated) questioning of an eye witness in ‘Witness for the Prosecution’ to a preening Tom Cruise goading Jack ‘you can't handle the truth’ Nicholson into some self incriminating admissions in ‘ A Few Good Men’.
Back in the real legal world, cross-examination rarely results in such moments of high drama. Nevertheless, since it plays such a critical role in the outcome of trials, it is useful for all participants in legal proceedings (barristers, solicitors, judges, clients and witnesses) to understand some (and this is by no means all) of the principles at play for the advocate when it comes to cross examination:
PURPOSE - typically the most common mistake made by inexperienced advocates is to question simply because they have been invited to do so by the judge. Yet, the first question the would be cross-examiner should always ask internally is ‘do I need to ask any questions at all?’ swiftly
followed (if the answer is yes) by ‘why?’. Clarity of purpose helps prevent rambling unfocused questions leading to damaging answers. Purpose gives focus and therefore power to the advocate to ensure the evidence brought out of the witness is precisely the evidence that is needed. It is for this reason that good advocates will often prepare or at least outline their closing submissions first, before then preparing their cross.
PREPARATION - no doubt there are those few advocates that can deliver hours of forensic examination with little or no preparation, but they are a rare (perhaps non-existent) breed. Typically, it is only through careful analysis and preparation that the best line of questioning will be revealed. Preparation gives the advocate the upper hand over the witness, because it allows him or her to see a clear path to a chosen destination, whereas witnesses typically lose all perspective as soon as they've taken the oath.
NEVER ASK A QUESTION TO WHICH YOU DON’T KNOW THE ANSWER - this classic piece of guidance drummed into every law student remains excellent advice. Far from restricting the scope of possible questioning, it reminds the advocate that cross-examination is as much a science of precision as the art of getting what you want from someone that truly doesn't want to give it to you. With good preparation and case analysis, the advocate should always know the likely answer to every question being asked, and then be prepared for those possible answers. It is this ability to anticipate the response that allows the questioning advocate to effectively give evidence, by putting leading questions to be ratified by the witness.
TOO MANY QUESTIONS - hand in hand with knowing the answer to every question, the importance of this principle is exemplified by the following Bar School example.
Q: So, you didn’t even hear what was said?
Q: And you didn’t actually see the fight?
Q: Which means when all's said and done that you didn’t actually see my client bite the man’s ear off?
A:No. I didn't.
(Stop there, you might think, but the temptation to go on for the young advocate is too strong!)
Q: So, how can you be so sure that he actually bit his ear at all?
A: Because I saw him spit it out!
IMPRESSION - every advocate recognises the moment that a judge’s mind is made up. Though strictly speaking this shouldn't be apparent until judgment, very often the view that a judge takes of a particular witness quickly becomes clear and any answers are then assessed through the filter of that impression. Judges and juries like all people are quick to form first impressions, which, once set, are nigh on impossible to shift. Psychologically, this process actually relates to the evolutionary formation of our brains whereby our limbic brains (governing emotions) are largely responsible for decision making, whilst our neo-cortex (the more newly formed part that governs rational thought) helps us then rationalise the decisions we have already made. It's why we can take an instant dislike to someone before they've done anything to justify that prejudice, and then find ourselves looking for evidence to support that gut instinct.
The advocate must therefore work quickly to frame the immediate impression that the witness makes by tailoring the early line of questioning appropriately. It means finding out about each witness from clients or studying them in examination in chief or deciphering their likely character from documents (emails are great for this), even checking over their social media profiles.
A witness that may come across as authoritative can be shaken up early with challenging questions on topics slightly outside their comfort zones; combative and suspicious witnesses can be pushed to undermine their own credibility with straightforward questions in response to which they nevertheless refuse straightforward answers fearing a trap; gullible witnesses can be treated with exaggerated courtesy so as not to trigger feelings of sympathy, which will then prevent the judge from an objective assessment of their evidence.
DOCUMENTS & DETAILS - no one is capable of being consistent 100% of the time. We get away with our inconsistencies because life is not usually subject to forensic courtroom examination, and much of what we say or do is not actually recorded.
This makes documents a lawyer’s best friend. Almost inevitably, somewhere, at some point, in some innocuous document, a witness will have said something that exposes him or her to potential scrutiny. Emails are a veritable treasure trove for litigators because most people are typically unguarded in their email comments, providing a rich source of cross examination materials; and emails never disappear.
Yet with the benefit of documents comes the need for strong attention to detail.
The advocate must be adept at spotting and processing sometimes minute discrepancies within a vast tranche of papers because sometimes the crucial point can lie in a few lines of an innocuous memo on page 975 of Volume 3 of the trial bundle. The better acquainted with the detail the advocate (without losing the wood from the trees) the greater the advantage over the witness.
ADAPTABILITY - there isn't much that boxer Mike Tyson can teach us about cross examination, but he is credited with the useful quote ‘Everyone has a plan, until you punch them in the face’.
Similarly, however prepared any advocate is before beginning cross examination, events and answers will quickly cause a change in the best laid plans, making adaptability a critical skill. An advocate must listen attentively to the answers given (which may be slightly different to the answers hoped for) and then adapt accordingly. The ability to think on your feet as it is traditionally known is indispensable, but far harder than it looks as all those who have experienced getting the ‘wrong’ answer to a great question, know only too well.
PATIENCE - seasoned advocates are patient, understanding that quick answers have their place but that far greater value comes from a fully painted picture built up through a series of smaller answers to a set of carefully crafted questions. With patience an expert witness can be systematically discredited, where rushed questioning would have the opposite effect of further cementing his or her credibility. So long as there is purpose and direction to the questioning, the patient advocate can often turn the evidence of each witness to his/her client’s advantage or at least minimise the damage it would otherwise cause. Patience also ensures that judges and juries are given time to come to a full understanding necessary to then accept the advocate’s later submissions.
All this and more are factors that fall to be considered with each piece of cross-examination. Throw in a good dose of luck and happenstance and it’s easy to see why this remains the juiciest part of any trial.
No advocate can ever claim to be perfect or even brilliant every time. There are good days with perfectly malleable witnesses where your minor points hit home with a bang, and bad days with tough cases where your killer points falter with whimper.
It is sometimes easy, sometimes hard; often frustrating, but never dull. In short it is an art to be practised though never definitively mastered.