Cross-Exam: Chapter 31

Pre-trial Application

Practice does NOT make perfect because perfection is not possible in trial work.  Fortunately, perfection is not necessary.  Practice allows the trial lawyer to engrain the techniques of cross-examination so that they feel natural. 

Trial is the last place to learn technique.  It is the place to employ a technique previously learned. 

Cross-exam techniques work best when they flow naturally.  The more energy the advocate must spend on remembering the techniques, the less effective the techniques are.  Cross-exam techniques should no be saved just for the tough cross-exams.  They should be used in EVERY cross-exam so the tough ones feel easier.

Cross-examination is the most interactive of the trial phases; and, therefore, requires real-time interaction to properly prepare for trial.  Some valuable learning can be accomplished by watching an experienced trial lawyer exercise her skills, but is not substitute for the highly-interactive process ofcross-exam

Real witnesses do not cooperate; therefore, cross-examination rehearsals must build in a lack of cooperation.  There are more non-cooperating parties involved in cross-exam than any other phase of the trial.  Every player has an agenda.  The practice of cross-exam requires the expectation of things gone wrong.  The lawyer must become accustomed to scenario planning for the problem areas and answers.

Traditional deposition methods employing only open-ended questions do not train well or produce the most usable results.  In order to get the best value out of a deposition, both as a training and trial perpetration tool, it is necessary to abandon the notion the depositions are purely discovery devises.  Where possible in depositions, the advocate is advised to establish through leading questions the facts the advocate wished to use at trial.

The science and techniques appropriate for trial are likewise largely appropriate for pre-trial hearings.  While there may be tactical reasons to elect to use open-ended questions in certain pre-trial proceedings, the general theories of teaching do not changes. 

Hours of pre-trial experience using the techniques of cross-examination develop the cross-examiner’s confidence better than moments of trial experience. The pre-trial use of appropriate cross-examination techniques mentally trains and conditions the lawyer to rely upon those techniques as the foundation of the cross-examination.  The same is true with tone of voice, movement, impeachment, and other skills that are designed to have a particular impact on the jury.

As a result of the confident employment of the fundamental techniques of cross-examination, the advocate is rewarded by witnesses who are more under control and juries who are more in tune with the facts that support the advocate’s theory of the case.


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