In our last article on cross-examination, we discussed substantive preparation and expectations for cross-examination. In this article, we discuss effective impeachment and courtroom style.
We focus our impeachment discussion on impeachment by documents, as opposed to impeachment by prior inconsistent testimony. The latter requires that you establish that the prior testimony was sworn and at a time when the witness’ recollection of events was better because it was more proximate to the events at issue. With the advent of video, prior testimony impeachment can often best be accomplished by playing the tape. Some attorneys like to have the witness read their prior answer, while other attorneys prefer to read it themselves. There is risk that the witness can add emphasis if he or she is allowed to read the answer. But when the answer contains expletives or embarrassing language, it is most effective to have the witness read it. It can also be more dramatic.
Impeachment is a magic moment. It is to be savored. And death to the witness’ lie should come slowly and persuasively. “You wrote this memorandum.” “You wrote it when the events were fresh in your memory, didn’t you?” “You chose the words to use in the memorandum.” “You wanted it to be truthful and accurate.” “You didn’t want to mislead anyone with this memorandum, did you?” “Would you read to the jury what you wrote when these events were still fresh in your mind and you were trying to be truthful and accurate?”
When impeaching with testimony, give thought to whether you or the witness will read the impeachment. Pacing and ability to give emphasis are reasons that you should generally do so. However, sometimes, such as when the testimony includes rough or uncomfortable language, it can be more effective for the jury to hear it from the witness.
When using video testimony, make sure you have very carefully edited the clip so as to include the question and answer. Get clarity on whether you can edit out objections – and decide if you’d prefer to keep them in (making the opposing attorney appear obstreperous). Make sure to watch the clip so you know whether it has visual impact – sometimes the long pauses, the droop of the head, or the hands to the face tell the jury as much as the impeaching testimony.
Your style in cross-examining will depend on the witness and on whether you need to suggest that the witness simply erred in the recollection or, in fact, is lying. In either case, your reaction and body language tell half of the story.
Give careful consideration to what documents or demonstratives you are using. There may be moments when you want the jury’s attention directed fully to the witness. But more often than not, you will want the jury focused on a document or a demonstrative that makes your point for you. Choreograph what will be on the screen for certain questioning. Use checklists and summaries to make it clear to the jury where you are in the story.
In some instances, it is worth asking multiple questions about a damning document, simply to give the jury the time to read it and to further emphasize it. “Where were you when you wrote, ‘I am ready to do this deal?’” “You had already met with your executive team when you wrote, ‘I am ready to do this deal,’ hadn’t you?” “You also had already talked to your banks when you wrote, ‘I am ready to do this deal,’ hadn’t you?” “And two days after you wrote, ‘I am ready to do this deal,’ you met with my client, didn’t you?”
When the witness is lying, it is your job to make them feel physically uncomfortable for doing so. Your tone should leave no doubt as to your belief that he or she is lying. You may ask them to repeat the lie, before you attack it. “So you are telling this jury and Judge Kennedy that on October 18, 2007, when you met with my client, you had no intention of entering into a deal?” Then, methodically, go to work taking the lie apart.
Like all aspects of trial, effective cross-examination requires extensive and strategic preparation. It also requires that you listen, remain nimble, and stay acutely aware of how you and the witness are doing in your battle – when it’s time to turn the crank and when you can move on.
Good cross-examination should keep the jury on the edge of its seat. It requires a consistent energy and intensity. It also requires that you pick your important points and organize around them. Use principles of recency and primacy to open and close the cross on strong points. And never forget to take the gifts that the witness gives.
At the end of the day, cross-examination is where most trials are won or lost.