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Law Practice

Jul. 31, 2020

Cross-examination: Avoiding ambush by witness

Here are some pointers on how to avoid putting a foot in your mouth when the judge says, “Cross-examination, please.”

Stanley Mosk Courthouse

Michael L. Stern

Judge, Los Angeles County Superior Court

Independent calendar

Harvard Law, Boalt Hall

Judge Stern worked at the CRLA Santa Maria office from 1972 to 1975. He is chair of the Los Angeles County Superior Court Historical Committee.

There is a library of books and articles instructing attorneys how to conduct effective cross-examination. Book learning is good. But pulling useful facts out of witnesses is hardly as easy as it sounds on paper.

Especially in the rough and tumble of a trial, successful cross-examination requires not only thorough preparation, but also flexibility and focus in reacting to unexpected situations that arise. Suffice to state, witnesses do not always testify as hoped. For that matter, disastrous results may follow when a witness takes control of the exchange in response to a cross- examiner’s inartful questions. Judges and jurors often may look impassive when they listen to and scrutinize a witness, but they’re usually hanging on every word.

Here are some pointers on how to avoid putting a foot in your mouth when the judge says, “Cross-examination, please.” Some illustrations from actual trials show how bad cross- examination can backfire on a careless attorney.

Start with a Bang, Not a Whimper

Cross-examiner “Maybe I should have been something other than a history major in college. But let’s see if the jury can follow any of my questions and we can get through this cross-examination.”

Know the Facts Before You Ask

Q. “Isn’t it true that you called Mr. S. a turd?”

A. “No. That isn’t true.”

Q. “Really? That’s not true?”

A. “That’s right. I called him an odious little turd.”

Avoid Stupid Questions

Q. “How many bedrooms did your one-bedroom apartment have?”

A. “Like I said, it was a one-room apartment.”

Don’t Be a Smarty Pants

Q. “How did you know that she didn’t know what she was doing?”

A. “Because she didn’t know what she was doing.”

Q. “How did you know that?”

A. “Because she didn’t know what she was doing.”

Listen Up

Q. “Can you tell us what you said.”

A. “I didn’t say anything.”

Q. “Damn. What did I ask you? Oh, yeah. What did you say?”

A. “Nothing.”

Cross-Exam Doesn’t Always Follow the Script

Q. “Did you sign the note?”

A. “No.”

Q. “You didn’t sign the note?”

A. “I didn’t.”

Q. “What did you do after you signed the note?”

A. “Once again, I didn’t sign the note.”

Q. “Oh, I see.”

Beware the Witness Lying in Wait

Q. “Was it a house or a condo?”

A. “I’m not sure.”

Q. “Don’t you know the difference between a house and a condo?”

A. “I’m not sure.”

Q. “You don’t know the difference?”

A. “No. But I do know the difference between a good lawyer and a bad one when I see one.”

Don’t Fall for the Fool’s Bait

Q. “Doctor, was the patient male or female?”

A. “Right. Male or female.”

Q. “Are you sure?”

A. “Yes. Male or female.”

Only Press for the Essential Stuff

Q. “So you were his in-house bookkeeper for 10 years, except for the one day that you worked for him a few years before that?”

A. “Right.”

Q. “What did you do for him on that day some years before?”

A. “I don’t recall.”

Q. “I think that the jury has a right to know. I move to compel an answer.”

Court allows further response.

Q. “Now tell the ladies and gentlemen of the jury what you did on that day.”

A. “I don’t remember.”

Don’t Let the Witness Turn the Table

Q. “For how long did speak with your attorney when you met?”

A. “Not very long.”

Q. “How long is ‘not very long’?”

A. “Not very long.”

Q. “I asked you the question about ‘not very long,’ didn’t I?”

A. “Don’t you know the expression ‘not very long’?”

Q. “That’s what I asked you.”

A. “I don’t know. Not very long.”

Don’t Pounce

Q. “Were you terminated for cause?”

A. “What?”

Q. “I am entitled to know if you were terminated for cause. Now tell me.”

A. “Uh, what does that mean?”

Avoid the Unknown

Q. “You surely believed [my client] when he said that, right?”

A. “He was so unbelievable that I didn’t think that he could walk a straight line if it were 10-feet wide.”

Woodshed Your Witnesses

Q. “As [plaintiff’s] direct supervisor, how would you have used your skills as a manager to coach her to be a better employee rather than just firing her?”

A. “I would have pulled her apart. I mean, I mean [that] I would have pulled her aside and talked to her.”

Don’t Open the Door

Q. “You defrauded her, didn’t you?”

A. “Of course not. I’m not an idiot.”

Don’t Allow Experts a Soapbox

Q. “[My expert’s] report is inconsistent with your conclusions, correct?”

A. “That’s right.”

Q. “Why is that?”

A. “He’s just wrong.”

Q. “How’s that?”

A. “Doesn’t know what he’s talking about.”

Know When to Stop

Q. “Your Honor, I can’t cross-examine with any more questions. My voice is gone.”

Opposing Counsel: “Thank goodness.”

Certainly there is much more to cross-examination than these brief suggestions in the never-ending search for the truth. But abiding by these simple admonitions can put one on the right path to obtaining the facts necessary to argue a case. 

Michael Stern is a judge of the Los Angeles County Superior Court.


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