Cross-Examination: Chapter 10

A chapter is a sequence of questions designed to establish a goal. It therefore makes sense that each chapter of cross-exam be composed separately from every other chapter.

The best form of preparation for chapter method of cross-exam is to devote one page to each chapter.
The page preparation of cross-exam ensures that the lawyer will move toward a single goal at a time and that she will present to the fact finder the best facts on the topic.

3 Critical Questions That Must Be Instantly Answerable By The Cross-Examiner
1. Where am I?
2. Where am I going?
3. How am I going to get there?

As a starting technique it is advantageous to divide each page into 3 unequal columns. Column 1:  the questions  2:  the source  3:  room for notes, trial comments, use of exhibits, quotes from direct/cross.

Each cross-exam chapter is a series of leading questions.  A page of cross-exam questions is a page of answers.  So, the cross-examiner is really drafting a chapter of factual statements or facts they want to establish.

A cross-examiner may safely ask a question to which the answer is not known.  If the cross-examiner carefully proceeds within a chapter from the general to the specific, many leading questions can be asked to which the only logical answer will have been learned by the cross-examiner by the time the questions to which the answer is not known is asked.

Sourcing is the process of finding and entering the designation of where within the materials a particular answer can be found. Knowing the answer and knowing where the answer can be documented is the highest plateau of witness control.  When the lawyer has written out the source of the fact next to the leading question, the minutes a witness denies or feigns a lack of recollection, the lawyer can begin her systematic attack through impeachment.  Sourcing a fact is a technique that should become a matter of habit or routine because a cross-examiner cannot always predict when the opportunity to impeach will be offered.  When the cross-examiner has sourced a fact and suddenly encounters a full or partial denial of the fact, the end result will always be the opportunity for a successful impeachment of the witness.

Another benefit derived from  drafting no more than one chapter per page is the ability to integrate new answers or facts produced during the opponent’s direct exam of the witness or facts developed earlier on i the cross-exam.

It may occur that a witness changes a story during his direct examination.  This is when the lawyer need only to turn to the appropriate chapter and make a note in the tactic column with the new information.

Exhibits have multiple uses i cross-exam.  Their placement in a page is dependant on how they will be used.
There may be some occasions when the cross-exam of one witness is done to set up an impeachment of another witness, or by another witness.  It is important to make note of the fact that the current testimony or chapter is part of a 2 witness impeachment.

The introduction or highlighting of a fact through cross-exam can best be accomplished though an ordering of questions that begins with the general area of questioning within the chapter and moves the specific.  It is ordinarily envisioned as in inverted triangle.  The top as a general question, then middle as more specific questions, and bottom most narrow part of the inverted triangle is the goal-fact.

Besides the factual goal, in some instances there is an unstated additional goal of the chapter: creating an inference.   A common chapter that employs this technique is a “things-not-done (or done incorrectly)”.  The conclusion the lawyer wished the jury to draw from the testimony won’t be asked of the witness.  Instead it is a conclusion or inference that the jurors are likely to draw from the hard-edged facts that can be introduced though the cross-exam chapter.

It may take several chapters to explain one event in a case.  When several chapters are required to tell the full story each chapter within the bundle should be built using the same inverted triangle from which thechapter is headlines.

Often an unspoken goal of a chapter is to affect the credibility of the witness. Such chapter can look innocuous on their face.  A witness can be led into a series of answers that is directly contradictory to another witness on the same topic.  Te leading questions are not objectionable and the witness is not being impeached, so feels comfortanle and keeps answering.  The jury will understand the significance because a portion of the opposing counsel’s story is now disputed by opposing counsel’s own witnesses.

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