Cross-Examination’s Greatest Myth
Cross-examination occurs after the attorney who has called the witness to trial has asked her questions, (direct examination). While I believe direct examination is the most difficult part of a trial, cross-examination is the scariest. How do you prove to the jury that the witness who has just helped the opposing side is really not that helpful or should not be believed?
The reason cross-examinations are usually disasters is that attorneys believe in the myth created by Hollywood that an attorney should be able to get a witness to confess to lying. For this reason, cross-examinations are often more suicidal than homicidal. Why? No witness is ever going to confess that he is a liar. Consequently, your goal should be to prove that the witness is untrustworthy, not get the witness to admit it.
Cross-examinations are scary not only because attorneys are under the mistaken belief that they should get a confession as seen on TV or in movies, but there is the real fear that the witness won’t answer their questions and will hurt them by repeating damaging testimony from the direct examination.
In Turning Points at Trial, I interviewed Alan Dershowitz who shows how his preparation, creativity, and bluffing on cross-examination caused a turning point when he was defending a terrorist. In another interview, David Bernick, one of the most respected civil defense attorneys, takes readers behind the scenes to show how he developed clear themes and controlled an extremely difficult witness on cross-examination in a trial that made national headlines. Those cross-examinations were turning points at trial because the attorneys did not try and get the witness to confess to being a liar but instead they had the simple and achievable goal to prove the witness was a liar. It is this great lesson, proving that the witness is a liar instead of trying to get the witness to confess to being a liar that almost every lawyer fails to learn until it is too late.
One way to make sure you are on the right track is the following test: if you are calm in your questioning and have documents or common sense on your side to prove your point that the witness is a liar, you are achieving your goal. On the other hand, if you are arguing with the witness, frustrated, and angry that the witness will not admit she is a liar or has lied in the past, then, you are headed toward disaster.