Cross, Close and Counsel are the three essential skills of the Litigator
Performing cross-examination (Cross) is one of the Three-C’s that the Litigator must do with excellence if he wants to be an excellent trial attorney. The other two C’s are deliver the closing argument (Close) and counsel the client (Counsel) .
If you break the Litigator’s job down to its practical components you will get at least a hundred sub-skills that start with fielding the initial telephone from a new client and end with the final appellate argument. In between are all the other things the Litigator does, like drafting pleadings, responding to discovery and conducting voire-dire. While all must be performed competently for effective advocacy, none matter as much as the Three-C’s. To be excellent, a Litigator must be excellent at Cross, Closing and Counseling. These are the essential skills.
In addition to requiring excellence, the Three-C’s are non-delegable. A paralegal can review document production and a junior lawyer (Junior) can write a brief, but the Cross, Closing and Counseling have to be done by the Litigator himself. If he tries to pass on any one of the C’s to someone else, he will find that he cannot perform the other two with excellence. They must be weaved together throughout the litigation by the professional who is ultimately responsible for the outcome of the case, and that is the Litigator.
A caveat is necessary here. I don’t mean to say that the Litigator must perform every Cross. If he does that, his Junior will never be able to learn the skill himself. So the Litigator should have his Junior cross-examine minor witnesses, but he himself must perform the critical Crosses. These are the major witnesses whose testimony bears directly on the primary issues of the case (Issues) , and it is the Litigator’s job to determine which of the Crosses are critical.
A similar caveat applies to Counseling. The Junior should assist the Litigator with Counseling, but he should never be primarily responsible for it. The temptation to over-delegate Counseling is the strongest with the clients who are most difficult for the Litigator to deal with, but it is the most difficult clients that require and deserve his attention the most. Thus, while it is counterintuitive, the more difficult a client is the less the Litigator should delegate his Counseling to his Junior.
Each of the Three-C’s has a unique and specific purpose
The purpose of the Close is for the Litigator to meet his burden of persuasion on those Issues for which he has the burden of proof. And, for those Issues for which his Opponent has the burden of proof, it is to persuade the jury that it has not been met.
The purpose of Counseling is to guide the client through the litigation process. In this, the Litigator is like a nineteenth century frontier scout leading a family of pilgrims across the Appalachians to establish a homestead in the wild west. Because he has made the trip many times before, he knows where the rivers are the easiest to ford and the dark canyons in which the bad guys are most likely to hide in wait. He does everything he can to help his family make it through safely, knowing that (unlike him) they have never made the trip before and are likely to both mistake a few molehills for mountains and underestimate the full and real danger of some critters they need to avoid. Counseling is one of the Three-C’s because without it the client will never make it to the Close—he will give-up or trip-up long before that.
The purpose of Cross is twofold—first, to call into question hostile witness testimony on material facts in dispute to enable the Litigator to meet or defeat the burden of persuasion during the Close; and second, to gather evidence to meet his burden of production at the close of evidence.
While the Litigator will spend some time Diminishing the witness’ character for truthfulness during Cross, it is not his objective to destroy the witness so that the jury will wholly disregard his testimony. First of all, this is not possible. The jury knows that even a stopped clock is right twice a day and that a largely Diminished witness (even one who is forced to admit having lied in the past) may well be telling the truth now, under oath, on this occasion. Thus, setting out on Cross to destroy the witnesses’ credibility through Diminishment is not the right objective—the Litigator might achieve it and still get nowhere.
Moreover, the Litigator who devotes most of his time and energy to Diminishing the witness is approaching Cross as if it exists in a vacuum. You don’t Cross to Diminish, you Cross To Close. Bearing this in mind should have one immediate (and advantageous) effect on the quality of the Litigator’s cross-examinations—it should make them shorter, and this is the First Principle Of Cross: The Shorter, The Better.
The focus of Cross is the material facts in dispute
The principle of The Shorter, The Better applies to any endeavor that requires sustained human attention to have impact. The longer you must maintain the concentration of people, the more difficult it is to achieve your objective. Whether it is a speech about gardening or an opera, the principle of The Shorter, The Better applies.
The Litigator shortens his Cross by focusing on the material facts in dispute that the jury must decide in order to answer the Issues that the judge will put to them in his charge. The Litigator cannot forget that it is the judge’s voice that will always be the last one the jury hears before they troop out and begin deliberating. It is the judge who will tell them what the Issues are and instruct them on the law that they must follow in order to determine them—he will represent the ultimate authority that guides them to a verdict.
When the Litigator bears the burden of proof, his voice will only be the penultimate one the jury hears. The jury will be fully aware that he (unlike the judge) is an advocate rather than a neutral—he has skin in the game. As a result, the Litigator will have some authority with the jury, but only to the degree that his Close conforms both to the evidence the jury has already heard during the trial and the instructions that they will receive from the judge when the Litigator stops talking.
The Litigator’s limited authority with the jury will erode in direct correlation to the variance of his argument from the facts they have heard and the law the judge will give them. This is why he must Cross To Close, focusing primarily on the material facts in dispute that the jurors have to decide and the applicable law they will be told to follow. Anything else will just be a distraction to them.