Day on Torts
Lane Haygood, of Haygood Law in Odessa, Texas, offered a series of tweets on conducting cross-examination. They are repeated below.
Cross-examination is an essential skill for a trial lawyer, and one most lawyers are truly, mind-bogglingly terrible about, because they overcomplicate the process. To be a good cross-examiner, you have to be a good listener. /2
Most lawyers try to script their crosses. This is bad. Most lawyers don’t listen to what the witness is saying, because they’re too busy thinking of their next devastating Perry Mason question. Stop that. You’re not Perry Mason and this isn’t TV. /3
You prepare for cross-examination of a fact witness by knowing your case, inside and out. If the witness has testified previously, you need to have that transcript committed to memory. You need to know your case so well you can summarize it in your sleep. /4
Thus armed with all of the facts, you are ready to cross-examine a witness but for one thing — stop what you are doing and LISTEN, really listen, to direct examination. /5
You should know, going into it, that you will never, ever, ever get a hostile witness to agree with your side of the case unless you have it on prior testimony and can impeach them with it. They will ALWAYS be hostile to you. So don’t try. /6
The cop is never going to say, “well gee Mr. Defense Attorney, you’re right, I did not really have probable cause to pull your client over!” Stop trying for that. Don’t ask, “so you didn’t really have probable cause, did you?” That’s a dumb question. /7
Think about what it is you need to prove. If you need to prove a lack of probable cause, what’s the legal standard? The officer must not have had sufficient facts to conclude, based on a totality, that evidence of a crime would be found where he searched. /8
So focus on the facts! “You saw my client leave a residence.” “You saw my client drive away.” “He traveled a normal rate of speed.” “He used his turn signal.” “You said on direct this residence was a known drug house; that wasn’t based on your personal knowledge, right?” /9
“You only learned that from speaking with your fellow officers.” “You didn’t see a hand-to-hand transaction.” “You didn’t see how long my client was in the house, correct?” You bring out all the facts, and then STOP your questioning. /10
You can argue to the judge, “You heard Officer Friendly testify. He testified to facts A, B, and C. That’s not enough to get over the probable cause bar, judge, because he would have needed facts D and E.” /11
You can only do this if you (1) know your case, (2) know what you need from the witness, and (3) know what the witness said by listening. Once you have elicited all facts you need from a witness on cross-examination, shut the fuck up. /12
Once you get what you need, you should be technically “winning.” The more you talk, the more you give the witness a chance to fix their fuckups. Quit while you’re ahead. /13
People will often tell you “don’t ask a question you don’t know the answer to,” and while that’s not bad advice generally, it’s a rule that’s made to be broken. /14
You can ask an open-ended question on cross so long as you don’t care what the answer is, like where there’s no good answer to the question. /15
Ultimately, cross-examination is not a battle between you and the witness; the witness will testify as they will. Your job is to use cross to put your story in the mouth of the witness through leading questions. /16
Force them to admit on what points their story agrees with your theory of the case. Ask them questions that cast doubt on their veracity or credibility. Listen carefully and catch them in contradictions. /17
Do not ask them to explain a bad answer. Just have them confirm it is a bad answer and MOVE. ON. You can always argue it to the judge, but not if you let them correct it. /18
Cross should not be adversarial unless the witness takes it there. Let them get mad at you. If you can think of a way to get under their skin, use it. It’s theater. Let the judge see them argue with you. /19
Don’t sink to their level. Smirk at them. Laugh with your eyes. Act supremely patient. “Now Ms. Smith, there’s no need to dramatics. Did you, or did you not, deny my client visitation on June 1, 2020?” /20