Cross-Examination Techniques - As Varied as the Cases You Try

I had the real pleasure of lunching with a colleague today, who is one of the most experienced criminal trial attorneys in New Jersey. He served for more than 25 years as a county prosecutor and is now a well-regarded defense attorney. He is the consummate gentlemen.

We decided to go out and to speak about cross-examination. Strange as it may seem -- given that cross- is the lifeblood of trial attorneys -- I could not remember the last time I sat down with a colleague to compare techniques and ideas for approaching this subject. He had the same lack of memory. We also agreed that it was difficult to find the time even to watch others' styles. The result of all this is that our colleagues have a wealth of unshared experience. I made a "Note to Self," to remedy this situation.

We discussed the varied styles of our colleagues whom he had seen in action. The upshot was that their styles varied and, unsurprisingly, seemed to correspond with their respective personalities. Where cross-examiners we have seen got into trouble was where their approach deviated from their personality or where the approach was unsuited to the case theme. In other words, it was unhelpful for the cross-examiner to fight witnesses in a scattershot manner.

So we discussed some effective techniques. They included:

1. short, crisp questioning to lock in the witness
2. telling your story through deliberate questioning in an organized manner
3. reinforcing case theme through cross-examination
4. not "swinging at every pitch," but choosing selective topics for cross
5. modulating your voice to impact the effect of the question on the jury
6. altering rhythm, speed and tone to accentuate particular questions
7. maintaining jurors' trust in YOU as the questioner
8. remaining mindful of jurors' reactions to questioning
9. knowing when to sit down
10. never cross-examining unless the witness has offered harmful evidence, or, if not, the witness can support your case

Perhaps most importantly, BE YOURSELF before the jury. Otherwise juries will react badly if they lose trust in you. Happy cross-examining.