When in charge, take charge
To hold sway is to have power or influence over a person, place or process. To be effective on Cross, the Litigator must hold sway over all three. On Cross, the Litigator is in charge, so he must take charge.
Cross is like a waltz with the hostile witness as your reluctant dance partner. He doesn’t like you or the music you’re playing and he is bound and determined not to let you lead, but that is exactly what you have to do to be effective. You have to take charge of the witness and make him dance to your tune.
At the core of witness control is the practice of asking leading questions, which is why the Third Principle Of Cross is to Always Be Leading. This principles requires the Litigator to discipline himself into making the overwhelming majority of his questions leading rather than open-ended.
A leading question is one that suggests an answer to the witness and provides him a binary choice of responses. An open-ended question does not suggest an answer and provides the witness with a universe of logical responses.
• You drove your own car to court this morning sir, didn’t you is a leading question. It suggests the answer of driving one’s own car (rather than any other means of conveyance) and allows for only two responses—yes or no. Either the witness did drive his own car to court that morning or he didn’t.
• How did you get to court this morning sir is an open-ended question. It allows the witness to respond with any logical means of conveyance available—car, bus, train, UBER or ride from a friend.
The leading question provides the Litigator with control over the witness. It limits the witness’ options and makes it difficult for the loquacious witness from going off on a narrative in order to stall and divert the Cross. A judge will be much more likely to allow you to interrupt a runaway witness if your question only provided for a binary response.
There are a few (but only a few) exceptions to the principle of Always Be Leading. One is when the answer doesn’t matter because the fact sought is in the question itself rather than the answer sought. How did you get to court this morning would be such an instance if the fact sought is not how the witness got to court but rather the fact that he came to court voluntarily (rather than an under compulsion). It wouldn’t matter what the witness’ answer was—he could say he got to court by horse and buggy—as long as the act itself was voluntarily, and that was implied in the question.
Another example of a permissible open-ended question is one that cannot reasonably be answered at all. Here, the fact sought is really the absence of a fact. I had a trial once in which my client had invested a significant sum of money into a failed partnership. His partner (the plaintiff), a younger man who was broke when the partnership was formed, had only invested his sweat in the venture. After getting his admission of the great sum my client had parted with (and not received back), I asked the witness an open-ended question: and how much money did you invest?
The witness, as I suspected he would, ignored my question and launched into a lengthy description (which he had already provided on his direct) of all the work he had done to try to make the partnership a success. I let him get a little of the way into it and (when I saw a few jurors start to roll their eyes) said Sir, you’ve already told the jury this and it isn’t what I asked you. I asked you how much money you invested. Is there a reason why you are afraid to tell them zero—that you didn’t invest one thin dime?
Both questions (how much money did you invest and is there a reason you are afraid to tell them zero) are open-ended questions that provided the witness with the universe of logical responses. But I knew that there weren’t any logical responses, so the questions couldn’t have been answered at all. The witness didn’t invest any money, and if he had a reason why he was afraid to tell the jury that, he wasn’t willing to express it. His silence made the point for me.
The third type of permissible open-ended question on Cross is one that you know you are going to withdraw before it is answered. These are questions that you think a juror might want to ask the witness himself if the judge would allow it.
For example, to an oft-repeated, overly-pat and convenient answer you could ask is that the answer your lawyer told you to give? Your opponent objects under attorney-client privilege and you withdraw the question before the judge rules—but a juror thinks to himself, yeah, I wonder if that is just something his lawyer just put in the witness’ head. I wonder what the real answer is.
Or, if the witness testifies about the rectitude of a dubious action he took in the family business after his father died, you could ask what would your father have thought of that if he were still alive? Because it calls for speculation, the judge will sustain your Opponent’s objection, but a juror might draw the conclusion that the witness’ father would have disapproved—otherwise, why wouldn’t he want to answer the question. If your Opponent is crafty and lets the witness provide a self-serving answer like “sure, he would have been OK with that”, you can then ask the witness: do you mean to say that your father would have approved of that kind of unfair dealing?
A leading question can still be ineffective if it is too complicated. Which is why the Ninth Principle Of Cross is KISS (keep it simple, stupid). Simple questions are short, clear and unitary. Un-simple questions are long, fuzzy and multi-faceted.
Asking short questions is harder than it sounds, because it is not the way people are raised to speak if they are raised to speak politely—and most lawyers are. Short questions are terse and direct. They put people on the spot. Long questions are soft and meandering, like a canoe trip down a lazy river. They make you feel comfortable and at ease, which how polite people want other people to feel, but is the opposite feeling the Litigator wants the hostile witness to have on the stand. You want him under pressure because pressure gets to the truth.
• Sir, you are not licensed to practice law in the State of North Carolina—is a short question. It’s terse and direct.
• Sir, wouldn’t it be fair to say that since you neither graduated from law school nor passed the North Carolina Bar that you are not currently permitted to practice law in the State of North Carolina—is a long question. It’s meandering.
Short questions force short answers out of the witness. Long questions allow for long digressive answers, like “well, I had intended to go to law school, but my mother got sick and I had to take care of her . . .” A short question is like a short leash—it cuts down on the wandering.
In addition to brevity, simple questions are also more likely to be clear. A clear question has an actor, an action and very little else. It allows for a minimum of subjective interpretation. There is nothing fuzzy about it.
• You graduated 150th out of 151 in your law school class—is a clear question. It’s objective and simple to understand. The witness was the last man from the bottom of his class.
• Sir, wouldn’t you agree with me that law school was very difficult for you—is a fuzzy and subjective question. It allows for fuzzy answers like “maybe be it was difficult, but not very difficult.” Fuzzy questions invite reasonable minds to disagree—as they could over whether grades are really an accurate measure of difficulty in the first place. Because the question is fuzzy, there are realm of fuzzy answers that are likely to result.
If the Litigator’s questions are short and clear, it will usually follow that they will also be unitary, in the sense that they will seek a single integrated thought or fact. A multi-faceted question is the antithesis, in that it seeks several thoughts or facts, that may or not be completed related.
As with long and fuzzy questions, a multi-faceted manner of interrogation is how we are raised to speak, so it’s natural that an undisciplined lawyer would ask questions this way. It feels more natural—but it’s less effective because it isn’t simple.
Sir, wouldn’t it be fair to say that since you neither graduated from law school nor passed the North Carolina Bar that you are not currently permitted to practice law in the State of North Carolina—is a multi-faceted question (as well as a fuzzy one). While it’s objectionable, because it’s a compound question, I wouldn’t object because it’s complicated and thus ineffective. I used to ask questions this way because my mind was racing and I lacked the patience to seek micro-admissions, which is the proper method:
Sir, you have never attended law school (no, I haven’t)
You have no law degree (no, I don’t)
You have never sat for the North Carolina bar (no, I never have)
You have no license to practice law in the State of North Carolina, do you (no, I don’t)
Asking a series of unitary questions leads directly to a series of micro-admissions that get the Litigator what he needs to Doubt Cast or Evidence Gather. By asking only (or mostly only) leading questions and keeping the questions simple, the Litigator maintains control over the dance of Cross. He takes charge.
Be prepared for the non-responsive witness
The most obvious tactic of the hostile witness intent on keeping the Litigator from holding sway on Cross is the non-responsive answer, which comes in four basic categories: 1) The Tangent; 2) The Quanswer; 3) The Quibble; and 4) The Dunce. While each category is different, they all share the same goal and purpose, which is to hinder, delay and avoid responding directly to the Litigator’s questions on Cross.
Over time, I have developed some stock control techniques to the non-responsive answer that generally work, for three reasons. First, the judge and jury doesn’t like the non-responsive answer either. It wastes their time and keeps them from getting to the truth. So, the judge will give you some leeway in using your control techniques and the jury won’t hold it against you too much as long as you don’t over-bully the witness. Second, like a stand-up comedian facing down a new heckler every night in a different city, the Litigator is facing a different witness on every case. For him, it might be the fiftieth time he’s used one of his stock techniques, but for the witness it’s his first go around. It’s not like the Litigator will need a lot of new material to be effective. Third, after being strung by a stock technique a few times, even the most obstreperous witness will realize the futility of being non-responsive and get down to business. Once he recognizes that you are in charge, the witness will generally stop trying to spit the bit.
Here is an explanation of the four basic non-response categories:
This is the classic non-responsive answer. You ask the witness if he knows what time it is and he tells you all about his efforts to rid his dog of fleas. After the first Tangent, I say Sir, I appreciate you telling the jury that, but that’s not the question I asked you—then I repeat my question.
After the second Tangent, I say Sir, that’s the second time you have answered a question I didn’t I ask you. I’m sure the jury would appreciate it if you wouldn’t do that—then I repeat my question, with a little more heat than the first time.
If he does it a third time, I don’t wait until his Tangent is over, but raise my right hand and say (with still more heat), Sir, again, NOT the question I asked you. Stop wasting the jury’s time and answer the question I asked you.
After that, I just interrupt him immediately if he begins to stray. If you follow this control technique, somewhere in this process you can expect an argument with your Opponent over your “unwillingness to let the witness answer” as well as some effort by the judge to compel responsiveness from the witness without letting you completely take over. I am sympathetic both to my Opponent (I’ve had the Tangent-guy as my own witness plenty of times) and the judge (after all, he’s supposed to be running things), but I’m just not willing to let a hostile witness off the leash. I’m in charge on Cross, and when I’m in charge I take charge.
This is a question (rather than an answer) in response to a question. Sometimes, they are evidentiary in nature, like “how is that relevant” or “wouldn’t that be hearsay”. The best response to the evidentiary-Quanswer is Sir, you need to leave that to the judge—that’s why he’s here, and immediately re-ask the question. Sometimes, your Opponent will pick up the objection and make it himself, but I wouldn’t do that myself because it makes it look to the jury like my client is doing the lawyering. If the judge overrules you, you look a bit like an idiot.
Another type of Quanswer is emotion- based, like “why would I do something like that” or “are you calling me a liar”. I actually love the emotion-Quanswer because it allows me argue on Cross in a way that probably wouldn’t work otherwise, as in:
o I don’t know sir, maybe to avoid returning what you took without my client’s permission, or
o No sir, it’s the jury’s job to assess your credibility not mine—if you are not being truthful, it’s them to whom you’ll have to answer, not me
The Quibble is a mini-argument from the witness about the way you’ve asked the question. There are two ways to handle The Quibble. The first is to avoid it preemptively through KISS—short, clear and unitary questions don’t leave much wiggle room. For starters, take out the modifiers from your questions (e.g., big, hotter, very, mostly) and you take away a lot of Quibble-room.
The second way is to incorporate the witness’ own words and phrases into your questions. If he calls his role in the partnership the “legwork”, then use that word in your questioning on Cross. Then, if he asks you what your definition of legwork is, say I’m using it in the same way you did when you were testifying earlier.
About half of my Sticks will generally be comprised of individual words that the witness used during direct about which I think he might Quibble on Cross. When I ask about them, I pick up the relevant Stick so that the witness can see it and say, Sir, you said you did the LEGWORK . . . That way he sees the futility on Quibbling over the very words he used (and I that wrote down).
One question my Client always asks me right at the end our final trial preparation is “how should I dress for trial?” My answer is always the same: wear what you would normally wear. Even though I don’t differentiate for the occasion, as in what you would wear to church or to a wedding, they always seem to understand what I am saying, which is don’t try to look like somebody or something that you’re not. The jury will see through it.
I look forward to this exchange with my Client because it confirms what I hope, which is that I’ve Counseled him properly, and that he trusts me and believes my advice that he should be who he is on the stand, not try to be somebody or something more (or less) than who and what he is. The jury will see through it.
Which is why I think it’s a bad strategy for a witness to suddenly transform himself into a doddering and forgetful knucklehead as soon as the Cross begins. The jury will see right through a witness who is a managing director at a large bank (and just testified quite articulately on direct examination) inexplicably becoming Patrick the starfish from Sponge Bob. I know that it’s a defense mechanism—I just don’t think it’s a good one.
The Dunce manifests itself by responses like “I’m not sure what you mean”, “I’m confused” or “I don’t think I should speculate”. The best response to The Dunce is to remind the witness (and the jury) of just how darn smart he used to be, on direct, like 20 minutes ago:
To “I’m not sure what you mean”, say Sir, I don’t mean anything differently from what you meant when you said the same thing this morning—don’t you remember that?
To “I’m confused” say Sir, you’re saying you’re confused about something you’ve just spent an hour testifying about?
To “I don’t think I should speculate” say well Sir, you were perfectly willing to speculate this morning—nothing’s changed has it, except that I’m asking you the questions instead of your own lawyer.
None of these responses are actually questions to which you expect (or need) an answer. They’re really just retorts to a subtle type of heckling that is designed to harass and impede your Cross. Like a good stand-up comedian, the Litigator brushes them aside quickly and deftly to maintain control over the witness.
Work hard to develop your own style
A primary obstacle most novice Litigators face is overcoming the dreaded cross/direct inversion, which is the asking of leading questions of one’s own witnesses on direct and open-ended questions of the Opponent’s witnesses on Cross. It’s a direct inversion of the proper technique.
The novice tries to lead his own witnesses on direct because he knows the answer he needs and he gets impatient. It’s easier just to give the friendly witness the right answer because you know he will agree with whatever you suggest. Likewise, the novice asks hostile witnesses open-ended questions because he is not entirely sure what answer he wants to get and he lacks the confidence to try to control a stranger. It’s easier not to suggest an answer to someone you know will disagree with whatever you say.
Even though I was an “old” novice (having served nine years in the Army before going to law school) and undeservedly confident in myself, I too suffered from the cross/direct inversion—and so has every young lawyer I’ve ever seen in action. The only exception I can think of was a high school student I coached in a mock trial competition. Even though she was only seventeen years old, she was a natural. In fact, she couldn’t NOT ask a leading question. It was something to behold. But that’s a hen’s tooth, a one-in-a-million. The rest of us have to learn to overcome the direct/cross inversion and the best way to do that is: 1) practice, and 2) to develop a style and maintain it.
My first year of practice was in a small criminal defense/domestic firm in a city without a public defender. As a result, I was in court every day watching other attorneys conduct cross and learning how to do it myself. By the end of that year I had tried about 50 bench trials and even one jury trial by myself. I wasn’t very effective on Cross, but I wasn’t bad. Most importantly, I had developed the foundation of what would become my style. Looking back, I realize how I took that year of on-the-job training completely for granted. The economics of the practice of law don’t really provide that kind of opportunity. I was lucky.
Luck being what it is, the Litigator must be determined to provide the opportunity to practice for himself by taking advantage of every opportunity he gets to examine hostile witnesses. He should also take advantage of every opportunity he gets to watch skilled Litigators execute Cross.
Above all, he cannot be afraid to fail. It is through failure that I have learned most of what I know that is worth knowing. Moreover, the Litigator should treat every opportunity to receive feedback as a penny from heaven. Post-trial interviews of the jury are invaluable for this purpose. I always tell jurors that positive feedback is great to hear, but criticism is what I really need. The Litigator makes sure to do this when he loses as well as when he wins. It is a hard thing to have a jury go against you and then (ten minutes later) ask them why, but it is a critical component in the advancement of one’s advocacy skills.
And, just as I always tell my Clients—BE YOURSELF. The style you develop must be yours, not a copy of another lawyer. This is the Tenth Principle Of Cross: Wear Your Own Pajamas. Take whatever gifts God has given you and use them. In Cross, as in all things, be who you are. If you don’t, the jury will see right through it.