Learn all the facts of the case, not just those you need to know before the trial begins. As you gather information to construct your case, determine how the cross examination will factor in. For example, if you’re cross examining a doctor who is serving as an expert witness, figure out how it will help your defense if you show the person to be in some way unreliable. An entire defense can hinge on discrediting a witness. [1] X Trustworthy Source American Bar Association Leading professional organization of lawyers and law students Go to source Conduct extensive research on the witness you’re going to cross examine. Knowing all about the person’s background will help you figure out which questions to ask to get the answers you need to advance your defense. Make sure you can back up all of your facts with sources like signed statements, transcripts and official documents.
Write out the questions in one column and the answers you want to receive in the other. Write out everything you want to say in detail and try to fully anticipate what the witness will say. Ask the witness questions about the specific evidence, whether it is for purposes of explanation, clarification, or to dispute something else that has been said during the course of the trial. Every answer should be backed up by research you conducted. For example, if you ask a witness how long he worked at a certain medical institution, you should have documented proof from the hospital that he or she worked there for a certain amount of time. That way, if the person gives an answer you didn’t anticipate, you’ll have evidence to the contrary—remember that it’s your responsibility to review all the evidence to make sure you won’t miss anything.
If you know the facts and have research to back them, you should know the answers. For example, you might ask the expert witness whether he or she was working on the night of June 19. You should already have documentation showing that he or she either was or was not working. If the witness gives a surprise answer that you know to be untrue, you’ll have the facts you can use to impeach the person. Surprise answers during a cross-examination are usually a thing that you should avoid at all costs.
If you don’t like an answer that was given, you can decide to omit that question at the trial. You should only ask questions with answers that are favorable to your case. If the person answers one way at the deposition and later answers differently, you’ll have grounds to impeach him or her.
Find biases as well. Starting the cross examination with the witness’s bias can cast a shadow on the rest of his or her testimony. For example, you could begin by asking the witness how many times he has performed a certain type of surgery. If he said “8 or 9” during the deposition, and this time he says “15 or 20,” refer back to the statement made during the deposition in your second question.
For example, instead of saying “What is your relationship to the defendant?” Say, “You met the defendant in January of 1999, when you were assigned to be roommates at the University of Virginia, correct?” Asking open-ended questions gives the witness too much leeway to give an unpredictable, subjective answer instead of a simple confirmation of the fact you already know to be true.
When you’re cross-examining an expert witness, for example, it can be more effective to have the information come from that person’s mouth, especially if you plan to loop back and catch him in an inconsistency. For an expert, you have to be even more prepared than you are for other types of witnesses. Cross-examination is all about the preparation. How you prepare is the key question, because when you’re in the moment, it’s too late to prepare. However, even open-ended questions should be carefully controlled. Be relatively sure of what answer the person will give, and follow up with more leading questions to keep the cross examination on track.
Try simply stating the fact and using your tone of voice to indicate it’s a question. For example, you could say “You met with Mr. Lee on the morning of August 2. " The witness will answer “yes” even if you don’t use the word “correct” to indicate it’s a question.
If you get an answer you don’t like, don’t argue with the witness. This will make you look bad, not the witness. If you have evidence that an inconsistency took place, you can impeach the witness.
Ask easier questions in the beginning to make the witness feel comfortable, and lead up to the more complicated questions after trust has been established with the witness. [8] X Trustworthy Source American Bar Association Leading professional organization of lawyers and law students Go to source Be persistent and aggressive without being a bully.
