Two Myths about Cross for Depos and Trial
In a previous blog, I discussed the greatest myth of cross-examination. It is the myth created by the old Perry Mason television show and continued by Hollywood that causes young lawyers to feel needlessly petrified of cross-examination whether it is at trial or a deposition. The lawyers’ fear comes from the mistaken belief that an attorney is supposed to achieve success on cross-examination like that moment in A Few Good Men.
In that movie, Tom Cruise plays an inexperienced military defense attorney, Lt. Daniel Kaffee, who is cross-examining Colonel Jessup, played by Jack Nicholson. The climax of the movie is the cross-examination of Jessup. Kaffee decides to do the unthinkable for a defense attorney in military courts—accuse an officer of lying without any proof to back it up. Despite the lack of proof, Kaffee’s instincts tell him that the power of his questions will force Jessup to admit that he gave an unlawful order (a military crime). However, Kaffee knows that if he fails, he will be punished for falsely accusing an officer. In this famous scene, Kaffee builds his cross-examination and hammers the ultimate question: “I want to know the truth!” Jessup responds, “You can’t handle the truth,” and he arrogantly begins to tell Kaffee why he can’t handle the truth, at the same time confessing to giving an unlawful order. You can see the movie clip here.
However, the reality is, that the confessions we see in the movies and on TV almost never occur in the courtroom.
Another myth is that the witness has the power. At first glance, cross-examination seems difficult because the attorney does not know what the witness is going to say, so it would appear the witness has all the leverage. However, the reality is that you get to choose which topics to question the witness on, and then which questions to ask. You are in control. You can question the witness on topics that you have the leverage, not him. Nonetheless, attorneys are concerned that even if they ask the right questions, the witness will give an answer that is detrimental to the case. But, it does not matter what the witness says; it is whether or not the witness will be believed. With an effective cross-examination, the witness will not be believed.
The third myth is advanced by Thomas A. Mauet in Trial Techniques. He instructs that you “ask only enough questions on cross-examination to establish the points you intend to make during your closing argument.” Under this theory, “you avoid asking the last question that explicitly drives home your point. Instead, your cross will merely suggest the point. During the closing argument you will rhetorically pose that last question and answer it the way you want it answered, when the witness is not around to give you a bad answer.”
The problem with this instruction is that it ignores the fact that any ultimate question you intentionally fail to ask for fear of getting a bad answer will be asked by opposing counsel on redirect examination (or at the end of the depo). Remember, it is not what the witness says, but whether or not he will be believed. Maintain your integrity with the jury. Ask the ultimate question the jury wants you to ask the witness. The witness’ answer is irrelevant. Indeed, his “bad” answer (which is a lie) actually helps you even more because now he has destroyed his credibility by lying directly to the jury (or if it is at a deposition, when you use it at trial.)