Writing down the right questions won’t necessarily get you the right answers
I like lawyer jokes because they deftly illustrate how odd the profession must look to an outsider.
I know a man named “Steve” who provides expert testimony in a very narrow field of engineering in which I have had several cases. Steve has a strong and unwavering view of a particular Issue that often arises, and his opinions about that Issue vary only slightly with the pertinent Facts of the individual case. Because there are so few experts in this area, I have had Steve as my own expert in some cases and have encountered him as my Opponent’s expert in other cases. He is a very smart fellow but, as is typical with the engineering mind, he cannot comprehend the mental yoga that Litigators must do to zealously represent their clients.
I once deposed Steve in a case in which he was to testify as my Opponent’s expert. In the deposition, I picked away at the foundation of his opinion on that Issue I knew he strongly held, and that I had elicited from him myself in a previous case in which he had been my expert. During the deposition, Steve became visibly agitated with me, but he maintained his composure. He is not a particularly effusive guy so I was not surprised when he left the deposition without saying anything to me after it was over.
Three months later Steve sent me one of those business-development Christmas Cards—as he usually had since I had started hiring him as an expert. But this year, under his signature, he had handwritten “I don’t understand how you can take the opposite position in (Case Y) that you took in (Case Z) . . . but Merry Christmas, I guess”. Clearly, he was very frustrated by what he saw as unforgivable inconsistency in my approach to the engineering Issue to which he so dearly (and purely) held.
That was probably not a great marketing strategy by Steve, but I didn’t hold it against him. For Litigators, Facts are like roughly cut diamonds that we rotate in the light to catch their best facets. It takes great flexibility of mind to do that, which appears to a non-lawyer as a characteristic that hovers between minor insanity and outright corruption. I get that. Which is why I like lawyer jokes. A little humor helps people accept (if not completely understand) the nutty stuff we have do to effectively represent our clients.
Take, “hey, are you still practicing law . . . when do you think you are going to get it right?” Good question. The answer is never. We never get it right in the sense that there is no longer room for improvement. The practice of law is much like the practice of a religious faith—you spend your life trying to get it right and then you die, hoping you did everything you could have done.
For the Litigator, this is particularly true of the Three-Cs—the three essential skills of Cross, Close and Counsel. Litigators should be about the business of continually accelerating their tactical and technical skills to better Cross, Close and Counsel. With Cross, that begins with preparation and for me, like most neophyte Litigators, that used to mean writing down the questions I intended to ask a hostile witness.
At the outset of my practice, I thought it irresponsible not to write down the questions for Cross beforehand. Otherwise, how could I be sure to remember everything I needed to ask. Also, it was a system that seemed to work well enough on direct examination with friendly witnesses. Even if my questions weren’t very good, or if the witness didn’t understand what I was asking, a friendly witness would make some effort to answer them. After all, they were friendly.
But the same was not true on Cross. Not only did hostile witnesses not try very hard to answer my questions, they usually made every effort to avoid answering what I asked, either by answering a question I hadn’t asked, quibbling over the wording of my question or saying they had no idea what I was getting at. After all, they were hostile.
After one (of many) of my initial unsuccessful attempts to cross-examine a witness from my carefully drafted list of questions, I shook my notes at the witness and exclaimed “Sir, I wish you would just answer the questions on my list”.
The witness, equally as frustrated, replied “well, just because you have a wish list doesn’t mean you’re going to get what you want. I’m a witness, not Santa Claus.”
That answer made me laugh out loud because the man was exactly right. I did approach cross-examination like a kid with a wish list, petulantly demanding that the witness give me what I wanted in the form of answers that he (rightly) suspected would harm him or someone with whom he was aligned. Whatever made me think that would work?
So I tried something new—strategery! Instead of writing a wish list of questions I wanted answered, I wrote out a list of facts that I thought were important to my case. This was before I began using the jury instructions as my guide, so the facts were not necessarily material, but they were generally in dispute. Using the facts as a guide improved my cross-examination technique considerably. It made me strategize to figure out how to get the witness to agree with me instead of just asking questions in a predetermined sequence.
But my new method had a practical limitation, in that it wasn’t very helpful if the witness successfully thwarted my carefully crafted strategy. Because each fact was built upon the ones before it, if I couldn’t get the witness to agree with fact #7, that made facts 8-12 impossible. It was like a football game plan that runs into a brick wall when my offensive line can’t budge the defense. Or as Mike Tyson said, a plan only survives until you get punched in the face. When a witness punched me in the face, I had no plan B.
And I probably still wouldn’t, unless I had a fortuitous and idiotic accident. After a morning of thwarted strategy with a hostile witness who was pretty good at punching me in the face, I went to lunch and tried to figure out how to pick up the pieces in the afternoon. Over my cheeseburger, I broke open my strategy sheet and made some changes that I thought might work. I also took some deep breaths, because I realized that my frustration was making me look desperate to the jury. I knew that because the last thing my client had said before I left was “you look desperate to the jury”.
When I returned to court after lunch I was determined to stay calm and tried to be confident that my revised strategy would work. When the judge returned the witness to me, I reached into my jacket to retrieve my modified strategy sheet out and found the pocket empty. My mind flashed to the lunch table where my notes were probably sitting next to my empty cheeseburger plate. A bolt of panic ran up my spine, and I sat there frozen.
“Mr. Redding?” The judge asked, “are you ready?”
Nope, I wasn’t. Without my notes, I realized, I was going to have to wing the second half of my Cross. I had never before questioned a witness without my wish list or (later) my strategy sheet. But I didn’t have any choice. No judge is going to have a jury cool its heels while an idiot lawyer chases his notes down at the Burger King. So I drove on and began my examination without a single shred of paper in front of me—and gave the best Cross (by a mile) I’d ever done to date.
The reason why is simple. Without any notes, I was able to listen to the witness’ answer without distraction. Instead of looking down to read my notes while he was answering my question, I was looking at his face and (for the first time) realized how much non-verbal communication I had been missing. Because I didn’t have my strategy plan in front of me, I didn’t (because I couldn’t) try to force him down a predetermined factual path against his resistance. I was also free to watch the jury and the judge, and I could see how they were reacting to my questions and the witness’ answers. In fact, without my notes, I saw how I needed to bring the jury into the process, using their body language to help guide me and making eye contact as a means of non-verbal communication.
None of that would have been possible if I hadn’t left my notes at lunch. That experience taught me that the best way to prepare for Cross was to know the case and treat the skills as something that I could do intuitively, almost without thought.
Which is not to say that I don’t write anything down. If I did that, I really would (in the heat of battle) forget important Facts upon which I need to Doubt Cast. But instead of making a list, I make my notes during a hostile witness’ direct examination on yellow sticky pads to remember the discrete points I need to explore on Cross. Over time, I’ve come to use the smallest ones that 3M makes so that I will restrict myself to one or two words (at most) that will trigger me to a particular Cross-point, which I call a Stick (the image works well for poking and prodding the hostile witness).
I make my Sticks quickly during the hostile-direct based primarily on instinct, almost like I’m humming along to a tune whose lyrics I don’t quite know. Initially, I simply line them up on the left side of my counsel table without regard to importance or relevance. Periodically, when I sense the witness drifting into an area of testimony I don’t really care about, I cull the Sticks to remove those that are not directly related to Facts or Diminishment. I also group them together by Issue, because that is how I will use them on Cross.
Ultimately, when the witness is turned over to me, I have clusters of Sticks spread out in front of me like puzzle pieces that I am going to fit together on Cross. Because it is all before me (rather than written on pages in a legal pad), I can easily jump with a witness from one Issue to another to take advantage of his effort to avoid being pinned down. As I make each Cross-point, I move the Stick back to the left edge of the table, so that I know I’ve explored it—or decided to abandon it.
Use the deposition transcript like a deck of cards
Putting the deposition transcript to deft use on Cross takes practice. Having seen it done a dozen different ways by other lawyers—and having myself tried two dozen different methods—I have ultimately come to learn a simple technique that is both effective and easy for me to execute under stress. Much of this technique will seem like simple stuff, but it is based upon actual mistakes I have made (and/or seen others make) that reduced the effectiveness of Cross substantially.
As with many aspects of trial, effective use of the deposition transcript during Cross begins with preparation. My first step is to make sure I review the deposition transcript as quickly as possible after I receive it from the reporter. The longer I wait, the more likely it is that I will put it off until a time that I have to rush—like the night before trial—and not do a thorough job. Planning to do this (i.e., setting it as a particular deadlined task) also helps me remember to get the original transcript from the reporter so I have it for use at trial.
In my initial transcript review, I don’t bother much with testimony that says exactly what I’d expect from the witness to serve what he perceives as his own ends. Instead, I focus on admissions against interest that the witness makes either out of his tendency toward honesty or because he doesn’t realize the import of his words. This is one of the reasons that the tenor of deposition should be far more relaxed than Cross. I want the witness to be comfortable and responsive during deposition so that his unguarded testimony will be useful for me on Cross months (or even years) later.
When I find one of these admissions, I mark and categorize it loosely along the lines of my Instructions. So, for example, if the existence of a contract is an Issue, I will have a category of “formation” that contains everything the witness says in his deposition that might help me carry my burden (or frustrate that of my Opponent) to prove offer, acceptance and consideration between the parties.
By first culling out the useful admissions, I will usually be able to reduce the transcript by about 70%. Then I set it aside until trial. In my final trial preparation, I only look at that 30% of the transcript that remains after my initial review. By this point, I will have more firmly tailored the Instructions and should have determined the specific Facts that I will need to prove/disprove during the trial. This allows me to further cull the transcript to something less then 10% of the original material.
From that 10%, I extract, copy and print each individual passage containing any admission that I anticipate will be useful during Cross in proving or disproving a specific Fact. I think of each extracted transcript page as a “card” (an XCard) that I reasonably expect to have to “play” during the Cross to win the “hand”. It’s like having an ace of spades (or five of diamonds as the case may be) that I anticipate will help me—if and when the opportune moment arises.
This last point encompasses the critical difference in the way I prepare for Cross now from my early days of preplanned “strategery”. Instead of trying to force the witness down a predetermined factual path, I prepare to use the opportunities he himself provides. Thinking of it as a card game helps me take advantage of chance and the unpredictability of my adversary, rather than being frustrated by my inability to force him to say what I want him to say. Cross is a dynamic exercise not a static linear progression.
After I finish my final cull of the deposition transcript, I put my XCards in the relevant exhibit files (the XFiles) that contain the documents that I plan to use on Cross. For example, if formation is an Issue and the lack of an offer a Fact, I would plan to use as an exhibit an email in which the adverse party (AP) proposes specific contractual terms to my client (CL), and I would put an XCard containing admissions about that document in that particular XFile.
For those XCards for which I don’t have a XFile that is directly relevant, I create an Issue file (IFile) . During direct, at the same time and manner that I am arranging my Sticks, I organize the XCards from my IFiles so that I coordinate their use with my Sticks on Cross. Because the Sticks are sticky, I affix them directly to the particular XCards they support. In this way, the Stick provides the You Said and the XCard the But in a natural flow without me having to search for anything.
STICK: You Said my client sent you an email instead of a letter to notify you of the default,
XCARD: But, didn’t you testify during your deposition that receiving notice by email had not caused you any prejudice.
If the witness denies it or says he cannot recall, which is often the case at the beginning of Cross before you show the witness that you are prepared to impeach him, I ask the judge if I can approach the witness. On the way up, I show the record version of the witness’ deposition transcript (still sealed in the reporter’s envelope) to my Opponent, taking care that the jury can see me doing it.
When I reach the witness, I stand to his side facing back into the courtroom so that the jury and the court reporter can see me clearly. I show the witness the sealed envelope containing his transcript and say some version of the following, making sure to elicit an affirmative response for the record:
Do you recall me taking your deposition on (date)
You swore to tell the truth that day, just as you have today
You were represented by your attorney, just as you are today
There was a court reporter present, just as there is today
That court reporter transcribed your testimony into a written record
Sir, I am now showing you the official version of that record; please note that I am now breaking the gold seal on the envelope that contains it and am handing it to you
I go through all that to establish in the minds of the witness and the jury that this is serious business. I have found the hard way that if I don’t go through that process the jury may not really understand the importance of the transcript. I have also found that some witnesses may not realize that they are casually committing perjury by not taking the transcript seriously. That doesn’t do either one of us any good.
Once I’ve done that, I show the witness how the transcript is numerated by page and line. This is necessary in North Carolina as we have a sit-down rule that requires counsel to ask questions from the seated position. Thus, we cannot (as one can do in South Carolina for instance) stand next to the witness and point out the lines in the transcript to which we wish the witness to refer. Usually, most witnesses will screw this up (accidentally or on purpose) at least once requiring me to return to the stand and show them again.
Once I have the transcript in front of the witness and am reseated, I am ready to return to the But. This is why it is critical for me to have my XCard, so that I tell the witness what page and line to go to and say the following:
On page 10, line 5 didn’t I ask you: “Mr. Jones, were you prejudiced by Mr. Smith sending you notice of default by an email rather than in a letter?”
And didn’t you you answer: “No, I understood what he was saying.”
There are other ways to do it, but I have found that this couplet of Didn’t I ask you—And didn’t you answer (“and didn’t you say” will also work) is the most effective method. If you ask the witness to read it himself, he’ll fumble around (“you mean to myself?”) or miss an important word so you have to ask him to do it again. If you summarize the answer, your Opponent will object and the judge will start getting aggravated. But if you stick to the couplet, there is really nothing the witness or his lawyer can do but admit that the transcript says what it says. Make sure you get a yes to both questions before you move on.
Once he has been shown his PIS, the witness will then be ready to succumb to the So (it doesn’t matter that the notice came to you be email) or look mendacious in denial.
I usually have anywhere between 10 to 20 XCards on hand for the average witness, but I have found that I only have to fully play the first one or two of them. Once you have established with the witness that you can back up your But with the transcript he will take your word for it and just concede the PIS. Once, I even had a witness interrupt me when I (for the third time) said “sir, would you turn in your transcript—“ with an “oh no, not that again!”
Handle exhibits like a pro
As with the deposition transcript, there are probably a hundred different possible methods of Impeachment with documentary exhibits. Because the technique that I use is the logical extension of how I handle exhibits in deposition, I will need to describe that process first.
When I have determined the documents I want to use in a deposition, I put them in date order and make copies of each exhibit following the rule of 3+Other. I need at least 3 because the first will become the original that goes with the court reporter, the second will become my clean copy and third will be my dirty copy. The “other” refers to the number of other attorneys who are in the case and thus at the deposition. For example, if it is only a two-party case (plaintiff and defendant) then there is only one “other”, so the number of copies of each exhibit would be 4 (3 + 1 Other). If there are two defendants (and one plaintiff), the number of copies would be 5 (3 + 2 Others).
Having made the right number of copies pursuant to the rule of 3+Other, I put all of the copies of each exhibit in one manila folder , the XFile, with the date on the left-hand side of the tab and a brief description of the document immediately to the right of the date. On the right-hand side I put a circle and square.
During the deposition, I mark the record copy and hand it to the witness I am questioning. I then hand the other copy (or copies) to the other lawyers at the table. That leaves me with the Dirty Copy—the one with my highlights and notes on it, and the Clean Copy—the one I will retain that is unmarked and thus mirrors the record copy that reporter will take.
Once I have identified the exhibit by number, I write that number on my Dirty Copy and in the circle on the tab of the XFile (both in pen). I don’t do this before the deposition because I cannot be certain (before I begin questioning the witness) of the precise order that I will be entering each exhibit—or even if I will be entering any specific exhibit at all.
At the end of the deposition, I am left with a stack of XFiles that each contain the Clean Copy and the Dirty Copy, and which are marked by the exhibit number in the tab. Back on my office afterward, I affix an exhibit sticker to the Clean Copy that conforms to the number on the tab of the XFile. At subsequent depositions I don’t reintroduce any previously introduced exhibit under a new number. Instead, I show the witness the Clean Copy and say “let me show you a document that was identified in a previous deposition as Exhibit 5”. Since I’ve already given the other attorneys a copy of Exhibit 5, I don’t have to do that again.
I encourage the other lawyers (and most usually agree) to maintain one continuous numbering system of all the exhibits, no matter which attorney introduced them. I keep all the XFiles in a banker’s box (or boxes as the case may be) which I call the “XBox”, organized by date order rather than exhibit number. By following this process through depositions, I am left at the end of discovery with an XBox of documents that I will use in part or whole at trial.
During trial preparation, I cull the XBox down to only those exhibits I am reasonably certain to use to prove or disprove Facts—just as I did with the deposition transcript. Then I repeat the rule of 3+Other to ensure that I have: one, a trial record copy (that I may introduce into evidence); two, my Dirty Copy; three, my Clean Copy; and as many “other” copies as there are other lawyers still left in the case when it is called for trial.
How I handle exhibits on Cross depends upon whether I am using an exhibit that has already been entered into evidence. If it hasn’t, then the jury can’t see it and I have to be careful about how I use it. If it has been entered, then it’s useable for just about any purpose because it is already in evidence.
Let’s say I am the defendant and that I’m Impeaching plaintiff’s primary witness on Cross with a document the witness has written himself (or signed) but which my Opponent has not yet entered into evidence. I ask the judge if I can approach, hand my Opponent one of the other copies and approach the witness with the incipient record copy. Since it is not in evidence yet, I hold the written side away from the jurors so that they cannot see it. In fact, I make a bit of a show of doing that so that there is no question in the judge’s mind that I am following the rules and being careful. Then I lay the record copy carefully in front of the witness and say:
Sir, I’m handing you what I’ve marked as defendant’s Exhibit Number 5 for identification purposes
This is your letter to Dale Johnson dated June 5, 2016 isn’t it?
At this point, I have to decide whether the recipient of the letter and the relevance of its date to the Facts issue provide me with sufficient foundation to read any part of the document to the witness out loud. If not (e.g., because Johnson has not yet been identified as a relevant and material participant in the facts at issue) then I have to do some more table setting:
Sir, Dale Johnson was your corporate accountant in June of 2016 wasn’t he?
The memo line of your letter states “Inventory Shortages”
This refers to the same inventory shortage that you testified about earlier today, right?
You wrote this letter in your capacity as an officer of the plaintiff, didn’t you?
On Cross, this would provide enough foundation for the judge to let me read parts of the letter to the jury, even though the document itself has not been admitted into evidence. Once the witness has conceded that he wrote it and that it is material to the dispute, it will be fair game for Cross.
A quick-NOTE: in some states (like North Carolina), you can only admit evidence in your own case. Thus, the defendant can Impeach a witness for the plaintiff with a document, but could not seek its entry into evidence. In other states (like South Carolina) it is permissible to enter cross-case evidence.
Once the judge is ready to allow portions of a document to be read to the witness, the Litigator should do just what he does when Impeaching with the deposition transcript, which is to read the relevant portion of the document to the witness rather asking him to read it it to the jury. To do otherwise is to give the witness the chance to throw the rhythm of the Close off by feigning difficulty in finding the portion you want him to read, or pretending you meant him to read it to himself or by not reading it verbatim. All of these stall tactics are obviated by simply reading the material to him yourself, like this:
Sir, please look at the second line in the third paragraph that begins with “And now”—do you see that sir?
Doesn’t your letter say “And now, we have a serious issue with inventory control that we must deal with”?
I read that accurately didn’t I?
You can generally do this while facing the jury and standing next to the witness (rather than returning to your seat in states that require it) with one or two passages of an exhibit before opposing counsel objects—or the judge, sua sponte, tells you to sit down. I generally milk it for as long as I can knowing inevitably that my Opponent will object and the judge will instruct me to return to my seat, at which point I say to the witness “please forgive me sir , I didn’t mean to make you uncomfortable”—which of course is completely untrue as that is exactly what I am trying to do.
A side-NOTE: politeness to the hostile witness is critical on Cross. I have learned from post-trial jury interviews that jurors expect and accept sharp questioning on Cross but do not appreciate anything they perceive as bullying. For example, without realizing it, I had developed a habit of nonchalantly flipping exhibits at witnesses that one juror (in a case I actually won) told me that she perceived as disrespectful to to the witness. Surprised, I asked the other 11 jurors if they felt that way too, and most of them agreed. Since then, I have always been careful to place exhibits in front of witnesses with (just slightly exaggerated) care.
Once being told to sit down by the judge (or if there are several passages in an exhibit that I intend to use—necessitating my return to my seat), I try to use every moment on my feet as fully as I can, by walking backwards from the witness a few feet and asking another question. When he answers, I do it again, and maybe even a third time before I find myself back at my seat. Because I am moving in the right direction, the judge will usually let me get by with that, and this process is (of course) dependent upon the size of the courtroom.
This backwards-walking routine of mine is in adherence to the Eighth Principle Of Cross: Get And Stay As Close To The Witness And The Jury That You Can. During the trial, the plaintiff has the right to sit at the counsel table closest to the jury because he has the burden of proof, while the defendant sits at the other table, which is farther away from the jury. Some lawyers fail to appreciate the power of proximity that comes from being right next to the jury. On occasion, I have even seen some plaintiffs’ counsel sit on the wrong side, which leaves me happy to take his table if the judge will let me.
When I am plaintiff, I take full advantage of my proximity to the jury by making frequent eye contact with the jurors and (hopefully) passively persuading them to the righteousness of my cause through my calm and professional demeanor (which I make great pains to fake when I am not feeling that way at all—which is often). Lawyering, like leadership, is greatly impacted by non-verbal communication, which is why the Litigator should always get as close to the jury as he can and act like a pro when he’s there. Proximity is powerful.
Likewise with the witness. While you can’t (and shouldn’t) bully a witness to the truth, you can press him to it and pressure is best applied in proximity. The farther away you are, the less pressure the witness will feel. Thus, while I understand the point of North Carolina’s sit-down rule—which is to lessen the advantage that a Litigator who has a powerful physical presence has over one who doesn’t—I hate it. I much prefer the South Carolina custom of allowing the lawyer free physical reign in the courtroom. States without the sit-down rule encourage proximity, while states that have it require the Litigator to become skillful in milking it out from the moment of opportunity.
Now, unlike the previous example (where the document is not in evidence), let’s say I am impeaching a witness with a document that has already been entered into evidence by one side or another. Unlike with an un-admitted document, no foundation is required before it can be read to him. It could also be published to the jury so that they can read along, or a demonstrative exhibit used for the same purpose. Because publication takes time and can be cumbersome, I prefer the latter method because it interferes less with the rhythm of Cross.
This circumstance illustrates one of the primary purposes of keeping a Clean Copy of the exhibit in the XFile. When I approach a witness with an admitted document, I always bring my Clean Copy with me rather than asking him to locate the Record Copy on the stand. There are at least three good reasons for doing it this way.
• First, it gives me a chance to gain proximity to the witness and the jury;
• Second, it keeps the witness from using the “I can’t find it” stall to throw off your rhythm. And in fairness to the average witness, it is often not a ploy, particularly where there are dozens of exhibits or the clerk has some or all of them on her desk for some reason. At recesses and the close of court for the day, I make it a practice to gather all the Record Copies and put them in order, but in-between the housekeeping they usually become massively disordered.
• Finally, it creates a good three-step rhythm that helps the jury focus. The three steps are 1) approach, 2) Impeach and 3) sit. It’s like rather-rinse-repeat.
Two quick-NOTES: First—always make sure to retrieve your Clean Copy from the witness after you are done using it. If you don’t, it will join the Record Copy mess, cause confusion and risk its loss. Usually I do this when I bring up the next Clean Copy to the witness. Second—technically, your Opponent has a valid objection to you Impeaching his witness with your copy of the document, rather than Record Copy. But I’ve only seen a lawyer do this a few times, and in each case the judge overruled him on “efficiency” grounds. As long as a particular practice is fundamentally fair, the judge will generally let you do things that make the trial proceed more smoothly.
When the document is already in evidence, my three-step Of Approach-Impeach-Sit sounds something like this. First, I ask the judge if I can approach the witness. Because the document is already in evidence, I don’t have to give my Opponent a copy of the exhibit, only show him the Clean Copy from my XFile, which lay carefully in front of the witness.
Then, I Impeach the witness by saying:
Sir, You Said that my client did not give you proper notice of default
But didn’t you respond to my client’s notice immediately after he gave it to you
Sir, I’m showing you a copy of what was previously admitted into evidence as Exhibit Number Five
This is your email to my client dated November 5, 2015
You sent this email to my client in response to his email of November 4, 2015
Your email specifically denies the default doesn’t it?
So, you had actual notice that my client considered you to be in default.
Depending on how long that takes (based on the witness’ willingness and skill in fighting me), I may be able to deliver the So while still standing in front of him and the jury. If so, I take back my Clean Copy (politely) and sit. If not, I return to my seat using the backwards-walking process and deliver the So from there—while standing behind my chair. Then I sit down and move on to the next point.
Techniques are like elbows, in the sense that almost everybody has at least a couple of them. Through my failures and observations of other (far better) attorneys I have stumbled into my method of using Sticks, XCards and XFiles to Impeach witnesses on Cross. Because it works best for me, it is the technique that I use consistently. If something else works better for you, than I would say use that method, only do it consistently so that you will have something upon which you can firmly rely during the stress of Cross.