In Cross-Examination, Using the Right Tone is a Key to a Win

boss screaming at small businessman

I’ve never met a trial lawyer that dislikes cross-examination. Cross-examination provides an opportunity to question evidence put forth by the opposing party. A strong cross-examination can make or break a case.  Jurors wait for cross-examination. They’ve seen television shows with dramatic cross examinations:  a witness testifies…then, the attorney pounces!

As trial attorneys, we spend a good bit of our preparation time thinking about how we will pounce.  One difficulty attorneys face carrying out strong cross-examination is how to use the right tone with a witness.  When I cross-examine, I follow a simple rule: be aggressive but never rude, arrogant or uncivil.

 Be aggressive, but never rude, arrogant or uncivil.

You need to be aggressive because you’re in pursuit of some of the most important testimony, in your case. It’s important to probe every significant aspect of testimony so that the jurors will see and understand why this particular witness’s testimony shouldn’t be credited. But, when you let your own emotions or ego control the cross-examination, you veer away from the central purpose of the cross-examination. Instead, you begin to transform the cross-examination into a story about you and your dislike of the witness, or your attempt to convince the jury by your own less than civil behavior that the witness is not worthy of courtesy.

Losing control of this singularly important moment in the trial can be the difference between winning and losing.

You gain nothing when you allow your own emotions and ego to take over cross-examination. In fact, you are choosing form over substance at the precise moment when substance is key.  You risk engendering sympathy for the witness by the jurors.

 An early lesson from a federal judge on the dangers of incivility

I’ll never forget an experience I had at a trial when I was a Judicial Clerk at the United States Court of Federal Claims. At a bench trial (there are no jury trials at the Court of Federal Claims) a plaintiff’s attorney decided to make a rude remark to an expert witness, implying that the expert witness had been provided all of his answers by the government’s attorney.  This jab caused the government counsel (normally a very soft-spoken man) to jump from his seat and yell out his objection. Without missing a beat, my judge turned to the plaintiff’s attorney and said, “Don’t insult the witness.  It only makes him look more poised and you don’t want that.”

This was a great lesson for me as a young attorney. Being rude to or insulting the witness only makes you look small. It helps the witness. It helps your opponent. And it damages your case.

By remaining aggressive in your effort to discredit testimony– but not giving in to the momentary adrenaline rush you might feel by being dismissive or uncivil to the witness— you highlight the essential purpose of cross-examination. It’s a winning strategy.

 

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