Day on Torts
The Cross-Examination Blog has published a helpful checklist on avoiding errors in preparing for and conducting cross-examinations that will be helpful to trial lawyers handling tort cases.
The blog is written by Ronald Clark, the author of the Cross-Examination Handbook, which I reviewed last year. Here is the review.
Ronald recommends that we AVOID:
Cross-examination when appropriate.
Lack of thorough preparation.
Showing that you are wounded by an answer.
Not actively listening to the answer.
Failing to maintain composure.
Having the jury perceive you as discourteous or as someone who is not a seeker of truth.
Failing to adjust behavior to the witness and situation.
Not using the cross to tell your story of the case.
Spending time on minutiae.
Asking a question to which you don’t know the answer unless it is an exceptional situation (see Cross-Examination Handbook, pages 59-60).
Asking interrogatory (“why”-type) questions except under exceptional circumstances (see Cross-Examination Handbook, page 99).
Disorganization.
Examining without notes (see the cross-notes format recommended in Cross-Examination Handbook, page 65).
Taking too many notes during cross.
Losing eye-contact with the witness by being locked into notes.
Failing to know and follow evidentiary law of cross.
Not using the nine impeachment areas including reliability, report and reporter (seeCross-Examination Handbook, pages 123).
Not using the seven essential impeachment techniques (see Cross-Examination Handbook, page 123).
Losing control of the witness. Have a repertoire of control techniques (see Cross-Examination Handbook, page 237).
Not knowing the ethical and legal boundaries of cross-examination and staying within them (see Cross-Examination Handbook, pages 355-356).
Being boring.
Not knowing when to stop.