The role of cross-examination is to weaken or discredit the testimony of the opposing witness and to obtain from that witness testimony favourable to your case. How can this be accomplished?
“You will cross-examine the other side’s witness only to the extent necessary to secure the information supporting the argument that you have planned in advance to make in summation about that witness. When you have secured the necessary information, what do you do? The most important word in a trial lawyer’s vocabulary is four letters long: s-t-o-p, stop, stop! When things are going great – stop! When things are going not so great – stop! When you fumble or fail – stop! stop! stop! I put it to you that no trial lawyer in the history of the common-law has ever made a mistake by stopping but frequently you make a mistake by not stopping.”1
The late, great Irving Younger who taught and wrote about advocacy, gave this sage advice 23 years ago at the first advocacy symposium held to commemorate the 150th anniversary of Osgoode Hall. His advice has, of course, stood the test of time and his words should be copied and put in every lawyer’s trial notebook.
The topic I have been asked to talk about, “Cross-Examination – Emerge Intact,” is simpler to write about and talk about than to actually put into practice. Cross-examination remains among the most difficult aspects of advocacy and, in my experience, is more often done poorly than well. During the limited time that I have to speak to you today, I thought it would be useful to set out some rules to assist you to better prepare for cross-examination and allow you to emerge, if not totally unscathed, than with fewer life-threatening injuries.
The role of cross-examination is to weaken or discredit the testimony of the opposing witness and to obtain from that witness testimony favourable to your case. How can this be accomplished?
Irving Younger enunciated a number of rules for effective cross-examination, some of which I have reproduced below: 2
- “Be brief. Unless you are Clarence Darrow, your cross-examination should be a commando raid, not the invasion of Normandy.”3 Just make two to three points. You must view the jury’s head as a particularly small cup,4 which once overfilled with information, spills its contents or “runneth-over”. The goal is to persuade. A jury cannot be persuaded if there is too much information to absorb. If they cannot remember what you have told them, you are in trouble.
- Ask short questions and use plain words.
Do not say “I suggest to you, that on the day in question, you were operating your motor vehicle without due care and attention.” Rather say, “I suggest to you that you weren’t paying attention when you were driving your car.” - Only ask leading questions. As Younger said, “Cross-examination is an aria sung by the lawyer interrupted only by an occasional monosyllable from the witness”.5 You put words in people’s mouths. You make the witness say what you want him to say. Herewith a Younger melody:6Q.: “Sir, did you get out of bed at nine in the morning?”7
A.: “Yes.”
Q.: “By 10:00, were you dressed?”
A.: “Yes.”
Q.: “Did you then go down the street?”
A.: “Yes.”
Q.: “And the first place you went to was the supermarket. Isn’t that so?”
A.: “Yep.”
Q.: “And you went directly to the fresh fruit counter?”
A.: “Yes.”
Q.: “And there you selected one dozen ripe California oranges, did you not?”
A.: “Yes.”
Q.: “You put them in a bag?”
A.: “Yes.”
Q.: “And there you stood in line waiting to pay for those oranges, didn’t you?”
A.: “Yes.”
Q.: “And as you stood in line, you looked out a plate glass window at the street, didn’t you?”
A.: “Yes.”
Q.: “And there on the street you saw an octopus crawling out of a manhole?”
A.: “Yes.”Stop and say thank you.
Notes:
1 Reprinted from Irving Younger, page 234: Advocacy. A symposium presented by the Canadian Bar Association – Ontario in collaboration with the Law Society of Upper Canada celebrating the 150 Anniversary of Osgoode Hall, 1982. Throughout this paper, I have quoted liberally from the Younger article “Impeachment”, pages 229-244.
2 Younger, p. 235
3 Ibid.
4 Ibid.
5 Ibid., page 237
6 Ibid.
7 Ibid.
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