Daniel I. Small | Holland & Knight
We’ve talked in prior episodes about the importance of control in cross-examination. If you give the witness room to wiggle, they’ll almost certainly take it. The most important control device is asking short, clear questions: questions that you can simply repeat if necessary and, if necessary, repeat again. But proper word choice is almost as important. As with so many other things in the courtroom, you need to be disciplined and avoid temptation.
On cross, one of the principal temptations is to try to get the witness to agree with your characterizations and your conclusions. It rarely works and usually causes harm. Instead, limit your questions to what the witness saw, heard or did. Think about that — saw, heard or did — within that universe. You want to further limit questions to things where you know the answer, or you can control the witness into giving you the correct answer. Lawyers often ignore that principle and instead pepper the witness with characterizations or conclusions, hoping that the witness will agree, or maybe that the jury will ignore the answers. That may come in the form of loaded conclusion words:
Madam Witness, you were speeding, weren’t you?
Or a suggestive adjectives and adverbs:
Mr. Witness, you were driving pretty fast, weren’t you?
However you phrase it, it probably won’t work and you’ll likely lose control.
For example, suppose that it’s important to establish that a witness was rushing across the street at the critical moment. Many lawyers succumbing to temptation will ask the witness to adopt that conclusion directly: You were rushing across the street weren’t you? If the witness has used that word in a prior statement, then fine, use that word, that precise word, not a synonym or a paraphrase, and be prepared to use the prior statement to impeach the witness if he doesn’t give you that exact word.
But what if the witness hasn’t given that word in a prior statement? If it’s an adverse witness, presumably so if it’s cross-examination, then he’s not interested in helping you. It’s just not going to happen. Unless the witness is unusually dense or inattentive, he’s listening to where you’re going and will want to block you from getting there and avoid looking like a liar or a fool. Thus, when you asked the question, “You were rushing across the street weren’t you?” all you’ve achieved is telegraphing where you’re going without forcing the witness to go there. As a result, you’ll likely get an evasive answer.
Well, no, I wouldn’t say that. I mean, it’s a busy street. I was being very careful.
If you push harder, it won’t get any better. Maybe you’ll get an outright denial.
The truth is, you were rushing, weren’t you?
I’m not sure. Well, I’m not sure what you’re implying. I carefully looked both ways.
Because it isn’t likely to work, you shouldn’t do it. Instead, establish all the little factual pieces that compel the conclusion you want the jury to draw without using the characterizations or conclusions that the witness won’t be willing to adopt. Ideally, when you get to the end of your line of questions, you won’t even have to ask the magic question, because the answer to it will be obvious to the jury and to everyone in the courtroom. And that answer will likely be more significant and much more memorable to the jury. Juries would much rather draw conclusions themselves than have a lawyer try to ram it down their throats.
So, for example, instead of asking, “You were rushing across the street weren’t you?” How about a line of questions something like this:
You had an appointment at 4:00?
It took you two weeks to get that appointment?
You drove into town for your appointment?
You don’t drive into town very often?
You got some traffic on the way?
You parked your car at about five minutes to four?
While you were parking, you got a call from your daughter?
We know from the phone records that call came in at 3:56, right? Four minutes before four?
And she was upset about something?
You talked to her for a few minutes?
The call ended at 4:03?
You had parked at a meter?
You couldn’t find change for the meter?
You were concerned about getting a parking ticket?
You went back into the car to look for change?
After a while, you gave up on finding any change and decided to risk getting a ticket?
Your parking space was three blocks from the doctor’s office?
That walk normally takes about five minutes?
But by this time, you were late?
Then at the end of the walk, you had to get across the busy street?
By that time it was at least 10 minutes after four?
And so on.
Trial lawyers use different analogies for this. I like to talk about bricklaying. Building a wall, one brick at a time. The point is that by the time you get through this line of short, simple questions, the answer ought to be clear to everyone in the courtroom: The witness was late and in a hurry, and you can say so directly in your closing argument, when the witness won’t have a chance to fight back and try to derail you.
If you’re new to this, try this exercise. Take a piece of paper and write the characterization you want at the top of the page. In this example, rushing. Then go through the case record and list every fact, no matter how small, that supports that conclusion. Trials are all about connections. Connecting one fact to another. Remember that to include any absent facts — that is, things that should have happened but did not — can also be effective. Break those facts down to short, clear one-fact-at-a-time line of questions. As many as you can think of. Then go back through the record and look again. Find the little pieces that connect together to reach your conclusion. Then ask those questions, one at a time, of the witness.
One category of words deserves special attention. Vague adjectives like “very” or “pretty” almost never achieve anything useful on cross, at least not on contested issues. Those words give the witness all kinds of wiggle room. If you ask the witness whether the meeting was “very important” or “pretty important,” the most that they’ll likely give you is that, well, it was important, or no more important than other meetings that week.
The key is to take it in pieces, not to rush to the conclusion. To take time to let it develop. The writer Arnold Galasso put it very well. He said the key to everything is patience. You get the chicken by hatching the egg, not by smashing it. Let the point you want to make hatch slowly. Do that by resisting the temptation and sticking to the facts.
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