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CROSS EXAMINATION APPROACH: WHY IT MATTERS

Trial lawyers have strategies they employ when presenting a case in court. Securing a favorable outcome for a client requires extensive, calculated trial preparations; a challenge that litigators know all too well. Despite the long days, months, or even years, spent on a case before it goes to trial, once inside a courtroom, those relentless efforts may not matter if adequate trial preparations are overlooked.

One vital aspect of trial planning involves establishing a practical approach to cross-examination. An effective cross-examination is one that results in a furthering of the attorney’s argument. Ideally, trial attorneys should use cross examinations only as a channel to emphasize the principle of the case being argued, to support already established evidence, and not for introducing new information.

 

Choose Your Words Wisely

During trial preparation, select a handful of words that describe the main principle behind the case. The chosen words or short phrases, should best frame the issue and appeal to the general public; much like the modern-day hashtag. Examples could be: "Overlooked" or "Betrayal" or "Misled," each of which speaks to the essence of harm caused by the injustice being argued.

- Emphasize the keywords. Inject them into the questions and responses used in cross-examination.

- Use the exact keywords. Put away the thesaurus, use only the exact words chosen to frame the case during cross-examination.

- Put the keywords on repeat. Words chosen to relay the essence of the case should echo throughout the trial. Include them in summation to help maintain the desired impact of the cross-examination.

 

Side Step Up to the Witness Stand

Attorney’s that plan to approach cross-examinations with broad, gentle, and indirect lines of questioning tends to coax more of what they need from a witness than attorney's who pounce at the first sign of weakness.

During cross-examination, attorneys should slowly engage the witness, laying down a trail of breadcrumbs with each question; questions that will inevitably highlight the facts the attorney seeks to establish.

A properly executed, indirect approach to a testifying witness during cross-examination is likely to produce favorable testimony. Often, direct and aggressive questioning results in loss of control by the examiner. This could potentially draw focus away from your intended direction.

 

Maintain Control

Guiding witness testimony requires a line of questions crafted during trial preparation that will gently, and effectively, funnel the testimony towards an indisputable position that supports the attorney’s argument.

Start with broad questions that use the case’s keywords to remind the courtroom of the main principle being argued. Close off avenues of escape while working in the keywords. These guiding factors need to be carefully prepared before entering the courtroom, with a focus on revisiting them during summation.

 

Final Thoughts

Honing in on a compelling emotion that represents the central focus of a trial is a smart approach when getting ready for the courtroom. Revisit that emotion or "case frame” at the right moments, like during witness cross-examination, to further compel your audience.

The origin of the adage, “you catch more flies with honey than vinegar” is officially unknown, but, it wouldn’t be surprising if it were discovered to have been coined by an attorney preparing for trial!

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