One of the most important techniques trial lawyers are taught is how to control the expert witness during cross-examination. Attorney Phillip H. Miller explains this strategy:
Cross-examination is not about a witness testifying; it is about the lawyer eliciting the desired testimony from the witness. Control the witness. If you feel you are not in strict control, follow the first rule of cross-examination and end it.
Follow these tips to control the witness.
1. Use the “one question, one fact” system. Although some lawyers may conduct cross-examination for hours at a time, this is rarely as effective as keeping cross simple and brief. The keys to simplicity are words and sentences that are short, precise, and jargon-free; questions that clearly communicate a point to the members of the jury; and simple examples that discredit or attack the opponent’s witness.
This does not come naturally to trial lawyers. When we ask questions, we rely on pace, tone, and volume rather than precise structuring. In proving any point, control of the witness depends on the precision of the question. Asking one fact per question gives the most control.
If you ask the question, “You were drinking all night on January 14, weren’t you?” it is unlikely that the answer will be “Yes/’ Instead, break this question into brief irrefutable facts.
Q. You got home from work some time after 5:00 that night?
Q. You had a couple of beers at home?
Q. About 9:00 you got in your car?
Q. You went to the My-O-My Bar?
Q. You met your friend Jake there.?
Q. He bought you a beer?
Q.You didn’t leave until the bar closed at 2 a.m.?
Q.You had a fresh beer within the last hour before closing?
2. Avoid open-ended questions. Do not begin questions with “why,” “how,” and “please”
3. In almost every instance, ask only questions to which you already know the answer. If you are somewhat unsure of the answer, do not ask the question unless it is relatively “safe” or the answer does not make any difference, that is, you can use any answer offered by the witness to the client’s advantage.
A classic illustration is the story of a defendant charged with biting off the victim’s ear. On cross, the eyewitness admitted he did not actually see the defendant bite off the ear but was nevertheless certain the accused had done so. The defense lawyer asked the fatal question:
Q.If you didn’t see the defendant bite the victim’s ear, how can you say you are certain he did so?
Q.Because I saw him spit it out.
4. Announce a change of subject so the jury (and the witness) will realize the subject is For example, signal the jury the subject is shifting to the plaintiff’s injuries at the accident by saying, “Let me ask about how the plaintiff looked at the scene. Was he bleeding from his head?”
5. Ask about facts, not conclusions. The witness will almost never agree to a lawyer’s conclusions. You do not want the jury to hear any conclusions except yours in the closing argument.
6. Avoid a direct attack on a witness’s opinion. If you do this, the witness will go to any lengths to support his or her opinion. Instead, you should attack the facts or assumptions that are the basis for the opinion.
7. Do not follow a difficult witness who has run on and on. If you do, you will lose control and be off your plan. Repeat the question!
8. Do not argue with the witness. If you get a bad answer, you have probably already violated one of the rules. Do not emphasize the testimony by giving the witness a chance to repeat it.
9. Keep your eyes on the witness. The witness may become intimidated enough to forget the canned answers and actually tell the truth.
10. Know when to stop. Once the witness gives a favorable response or a concession, move. If you persist, the witness may “correct” the testimony or qualify it in a way that eliminates its usefulness.
Cross is not about arguing with witnesses or showing the jury how smart you are or how tough you are. Cross is about establishing facts that support your theory of the case and/or discrediting a witness’s testimony.
Few attorneys can spontaneously create simple declarative sentences with one fact per question avoiding opinion or conclusion. Write down simple questions, and be prepared to repeat them ‘
Finally, witnesses are coached to run on and on during cross. Do not let this upset you or distract you from your plan. Repeat the question, ignore the “run,” and follow your plan.