“Cross Examining a Witness? Safety First!”
by Elliott Wilcox
Have you ever been to a gun range? Up until a few years ago, I'd never been to one. Other than displaying firearms to the jury during criminal trials, I hadn't held a firearm in over 20 years. The last time I'd actually fired a gun was back in Boy Scout camp, and I'd been a lousy shot. That's why it was a bit of a surprise for me when I suddenly had the urge to find a gun range and go target shooting.
Obviously, safety is a huge concern at every gun range. First, they had me sign a waiver that basically said, “We aren't liable for ANYTHING. Period.” After that, they ran me through the basics of loading, holding, and firing a handgun. Finally, they had me read through the list of range rules:
-Keep your finger off the trigger until you're ready to fire.
-You must wear shooting glasses or tempered eyewear protection at all times.
-Ear protection must be worn at all times.
-Always point your firearm in a safe direction.
-All firearms must be open and cleared except when on the firing line.
-All loading and firing of firearms must be done at the firing station.
-If a problem occurs, place your weapon on the firing stand and contact a range operator immediately.
-Unload your firearm and remove the magazine before leaving the range.
-Alcoholic beverages, drugs, or individuals who have been consuming those items will not be permitted in the firing range.
-No more than 2 people are permitted at each firing station at any time.
The purpose of all these rules is to keep everyone safe. But interestingly, when you study the list, you'll discover that there's one rule that's probably more important than all of the others. Which rule is it?
“Rule #4: Always point your firearm in a safe direction.” Following this one rule eliminates the majority of all range accidents. In fact, even if shooters ignored the other rules, as long as no one ever pointed a gun at anything they didn't intend to shoot, everyone's shooting experience would probably be a safe one.
But safety isn't just an issue on the gun range. As a trial lawyer, you need to be concerned with your safety during trial. One of the most dangerous areas of trial seems to be the area of cross-examination. As the old legal maxim says, “More cross-examinations are suicidal than homicidal.”
Luckily, someone developed a set of rules to keep you safe during this dangerous activity. These rules were first presented at the American Bar Association's 1975 annual meeting by Prof. Irving Younger, who titled them “The 10 Commandments of Cross-Examination:”
-Use Plain Words
-Use Only Leading Questions
-Do Not Quarrel
-Disallow Witness Explanation
-Save the Ultimate Point for Summation
Much like the rules of the gun range, however, one of these commandments is far more important than all of the others. If you follow this single commandment, you will control witnesses, streamline your cross, and avoid the majority of pitfalls most lawyers encounter during cross-examination. Which one is it?
“Commandment #3: Use Only Leading Questions.”
Notice that it doesn't say, “Use Only Leading Questions (Most of the Time).” It doesn't say, “Use Only Leading Questions (Unless You Don't Feel Like It).” It doesn't even say, “Use Only Leading Questions (Except When You Think the Witness Can't Give You a Bad Answer).”
No, the commandment is simple and direct: “Use ONLY Leading Questions.”
In the past few weeks, I've had the opportunity to watch several attorneys cross-examine witnesses. Overall, most of their cross-examinations were effective, but there were still a few times when the witness, rather than the lawyer, seemed to be in control of the examination. Here are a few of the problems I saw:
-Witnesses getting out of control
-Witnesses volunteering damaging information that the jury shouldn't hear
-Lawyers arguing with witnesses
-Without fail, every time that there was a problem, it was after the lawyer asked a non-leading question. Every time that the lawyer stopped asking leading questions, the witness attempted to exert control and re-tell their story.
Why would you ever abandon leading questions? Leading questions are one of the few tools that you're given to level the playing field during cross-examination, so why wouldn't you want to use them? Whenever you ask open ended questions, you give the witness the opportunity to re-tell their story.
Let's face it -- if you really liked their story, you would have called them during your case-in-chief. You don't want to hear their story again during cross-examination... You want to tell your client's story.
To make sure that happens, every question that you ask during cross-examination must be a leading question. To ensure that your questions are all leading questions, you must eliminate these deadly words from your vocabulary during cross:
These are wonderful words when you're conducting a direct examination, but they can wreak havoc during your cross.
Whenever you ask a question that starts with one of these words, you give the witness permission to explain their story. The worst words in the entire list are the last two: “Why?” and “Explain...”
When you start your question with either of these words, you give the witness carte blanche to explain why they did what they did. (Trust me, you won't like the answer.)
Just like at the shooting range, if you want to be safe, you need to follow the safety rules without exception. Make sure that every question you ask is a leading question, and you'll ensure that your time on the firing line is a safe and enjoyable experience._______
Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com