Don G. Rushing

Of Counsel Fox Law APC

Don is a fellow of the American College of Trial Lawyers, a retired partner of Morrison & Foerster.

Christopher Hendricks

Attorney Fox Law APC

The rules of procedure and evidence provide trial lawyers with one of the most important tools of their profession: the ability to call and orally examine witnesses under oath.

Compare a trial to a sandwich. The whole thing is held together by the bread that is opening statement and closing argument, your chance to argue the case. The toppings that spice up the sandwich is voir dire, the opportunity to interact with the jury to learn any attitudes, values, and beliefs that will influence their judgment. But the reason we make the thing is the meat; the opportunity for direct and cross examination to create the evidence upon which the case will be decided. How do we make the most of this opportunity to tell our client’s story through witness testimony?

Examination Basics

The objectives of witness examination are straight forward. This is the way you introduce the characters in your story and lay out the plot line. Witness examinations are the way to admit necessary evidence, build credibility for your case, and respond to the opposition’s evidence.

The process for both direct and cross examination is very similar. Identify the goals you wish to achieve for each witness and the order in which you wish to present them. Then determine the sequence of topics you wish to cover for each witness, based upon what you must prove and what each witness knows. Remember that what is said first (primacy) and last (recency) matters because it will be most remembered. Next, formulate questions for each section of the examination. As you ask questions, you will not only listen to the witness’ response with your ears, but with your eyes as well, attentive to non-verbal signals, so you are prepared to follow up.

There are several basic principles that apply to both direct and cross. Keep your questions short. Use plain, simple English. Focus on one fact at a time. Avoid qualifiers or value-laden terms that might confuse or provoke an argument with the witness. And use the visual element — documents, photos, diagrams, demonstratives — that both show and tell.

Direct Examination Pointers

Direct examination is the less glamorous twin of cross examination, but certainly just as important. And despite the advantage of a generally friendly witness, direct can be more difficult to do well. Trial work has an element of theater to it. As an advocate, you are the playwright using the evidence to script the theme, character development, and plot line of your case. Well prepared and executed direct examinations provide an excellent vehicle to tell your story. The witness on direct is the “star.” You are in a supporting role, asking the questions that allow the witness to tell the story.

Direct examination must be conducted through open-ended questions (with limited exceptions for preliminary matters or youthful or forgetful witnesses). “Reporter questions” that start with who, what, when, where, why, how, describe, explain, and tell us, are the magic words to use in framing questions. Headlines, such as “Let’s talk about the meeting on December 1, 2018,” can be used to navigate from topic to topic. Your aim is to construct open-ended questions on a single topic occupying no more than a single line of transcript.

Because you cannot lead on direct examination, witness preparation is essential. Create a good relationship with the witness. Your aim is to be trusted. Let the witness know the topics you will cover and the order of those topics. Practice with the witness, but let the witness be themself. Balance thorough preparation against the risk of an overly scripted witness.

Witness control on direct is important for both clarity and efficiency. Use exhibits to guide testimony where relevant. Repeat testimony to develop further explanation on a point. For example: “You said John was present; was anyone else there?” Stop or slow down the witness by gently interrupting and redirecting. For example: “We’ll get to that in a moment, but I want to bring you back to ….” Ask for explanations or definitions of terms. For example: “You mentioned ‘A/R.’ What did you mean by that?”

Several follow up techniques are available to you to elicit further information from your witness. If you wish to keep the witness talking about the last question without framing a new one, try a brief silence to make sure the witness’ answer is complete, or a “hmmm” or “uh huh,” or a “is there anything else” to prompt any further response. To move along to the next point, you might ask: “What happened next?” To expand on useful testimony, you might ask the witness to “please explain…” or “please expand…” or “please give us an example….” And to add the emotional content to the story, you might ask: “How did you feel…?” or “How did you react…?”

The jury’s interest in the witness is, in part, in your hands. You have a number of rhetorical devices to assist here. Word choice matters. There is a difference, for example, between “How did the cars come into contact?” and “What happened when the defendant’s car smashed into yours?” Pace of examination is vital. Too fast, and you risk the testimony washing over the hearer and being lost. Give the judge and jury a chance to absorb what is said. Vary volume and tempo for emphasis. Slower and softer (while still easily audible) says to the hearer “this is important.” Don’t forget the emotional content of the testimony. How the witness felt about something can be a window into motives for actions or reasons for recollection.

Cross Examination Pointers

John Henry Wigmore said that cross examination is the greatest legal engine ever invented for the discovery of the truth. But he also observed that a lawyer can do just about anything with cross examination if he is skilled enough not to impale his own cause upon it. The message here is clear: use this potent weapon carefully, and without pointing it at yourself.

Cross is perhaps the easier form of examination because it can be based upon a good deposition transcript, statements in a contemporaneous document, or admission of the witness in a report or statement, and because you, and not the witness, provide the substance of the answers. Cross is your opportunity to develop additional evidence from a witness offered by the other side (constructive cross), and to undermine the story your opponent is trying to tell (destructive cross). On cross, you, the examiner, are the “star” and the witness is the supporting actor. In this role, the witness is a bystander providing the affirmations or denials your questions seek.

In contrast to direct examination that largely is conducted through open-ended questions, cross examination may be conducted through closed-ended or leading questions. In fact, you should only lead on cross. Leading questions are your means of controlling the witness and efficiently developing testimony. And leading questions are best asked in the form of a “questment”: a question in the form of a statement that seeks the witness’ acquiescence. Use short, simple sentences on a single topic. For example: “You wrote this letter?” Of course, you will refrain from using open-ended questions, such as “Why?”, because that will surrender control to the witness.

Rarely will you have the opportunity to meet with and prepare a witness that you will encounter for cross examination at trial. Thorough preparation of yourself for cross therefore is imperative. Begin with your objective for the witness firmly in mind. What do you want to accomplish with the witness? Carefully review deposition transcripts, statements, documents written or received by the witness, or writings bearing on the subject matter of the witness’ testimony. Visit the scene that is the subject of the witness’ testimony. Then prepare an outline by topics. Think “modules” that will allow you flexibility in the order of the examination. Annotate your outline with references to the deposition transcript or the documents you may use with the witness. Have exhibits readily at hand and marked up with your notes to guide your examination.

Areas for cross examination are suggested by our codes of evidence. Does the witness have the opportunity, capacity, or reason to perceive? Is the witness’ memory good on a particular point? Does the witness have the capacity to adequately communicate? Is the witness truthful? Is there bias, interest, or other motive at play that colors the testimony? Is there something about the witness’ past state of mind that brings the testimony into question? And what is the witness’ knowledge, or lack thereof, on the key points?

Know your outline cold so that you can keep your head out of your notes and up at trial to observe the witness, the judge, and the jury. Order your examination so that you begin with a strong point — perhaps on the last topic of the direct examination — and finish with a strong point. Keep your objective in mind. The desired end result of a good cross is to develop clear statements from the witness that aid your case (sound bites) and that, in turn, can be used persuasively in closing argument.

As you cross examine, foreclose all explanations that the witness might give before confronting with the main point or impeaching material. This will require you to plot out possible responses that may be given during the testimony so you can frame questions that can be used depending on the answer.

As a general rule, impeach only on major points that are easily understandable. And when you impeach by a prior inconsistent statement, make sure the jury knows why the earlier statement is at odds with the trial testimony. A common method for impeachment is the “confirm, credit, confront” technique. First, confirm what you and the jury heard. For example: “I heard you say the light was red for north bound travel on Main.” The purpose is not to underscore the undesirable testimony, but to simply gesture to it. Second, credit earlier testimony. “That’s not what you’ve always said though.” Then continue with a series of questions to strengthen the earlier testimony. “You were deposed under oath. You gave truthful testimony at an earlier time. Your testimony was recorded by a court reporter. You had a chance to review the testimony after you gave it. You made no changes to it.” Third, confront the witness with the earlier testimony. After signaling to the court and opposing counsel the portion of the transcript to be read, say: “I’m showing you that deposition transcript and ask you read along silently with me while I read the question and your answer.” Read the relevant portion of the transcript. Then simply ask the witness: “Did I read that correctly?” And hopefully, you have! Then stop.

When cross examining, there are some clear dos and don’ts:

• Don’t ask if you don’t know unless you don’t care what the answer is;

• Don’t argue with the witness — save argument for closing;

• Don’t ask the witness to explain;

• Don’t ask the “one question too many”; and

• Do lead — in fact, do nothing else.

Good direct and cross examination begins with thorough preparation. When combined with the use of these basic techniques, you will enhance the probability your witnesses on direct will tell your client’s story effectively. And you will improve your chances of obtaining testimony on cross you can use in closing argument to support your case. 