Successful cross-examination is both an art and a science. It is focused not on attacking your opponent but rather a way to advance your case. Developing an effective cross-examination strategy involves obtaining results, such as advancing your themes, getting key admissions, and making the key points supporting your case theory. A strong cross-examination strategy takes preparation, knowing the facts of the case better than the witness, and having a plan for what to do if a witness impeaches him or herself. 

At Courtroom Sciences, we can help trial attorneys recreate a slice of courtroom proceedings through trial research and witness training to help you achieve superior litigation outcomes.

What should a successful cross-examination strategy include?

A strong cross-examination strategy should include advancing your themes, getting key admissions, and making the key points that support your case theory. Defense attorneys also need to be well prepared and be able to determine whether or not an individual witness requires a cross-examination. 

Consideration #1 - Determine Whether to Cross-Examine The Witness

Defense lawyers don’t always have the same leeway with being aggressive as plaintiff's lawyers. For this reason, one of the first considerations for developing your cross-examination strategy may be determining whether to cross-examine a witness. If a particular witness has no facts to add to your case, then there is no reason to spend time conducting a cross-examination. However, if that witness was an observer of an event or has a fact you need, you will likely need to cross-examine that witness. 

If you’ve determined you need to cross-examine a witness, you will probably want to try to get in and get out with your cross-examination quickly. Particularly when cross-examining a fact witness, such as in a medical malpractice trial, if the cross-examination has gone on for more than 10 minutes, it has probably been too long. Consider following a strict outline, where you try to get the most important fact out of the witness so that it is the first or second thing the jury hears.

Consideration #2 - How to Handle Cross Examination of an Adverse Co-Defendant

Deciding whether you need to cross-examine an adverse co-defendant can be difficult. You would likely assume that the plaintiff has already been aggressive with the witness before you begin, so it’s already a very narrow material window that you're trying to get out of them. For example, your co-defendant was disclosed as an expert in a medical malpractice trial, and you wanted the jury to hear testimony from a similar type of healthcare provider as your client. 

When cross-examining an adverse co-defendant, it’s also likely that if you make a mistake, it could become detrimental on redirect, so you certainly want to try to adhere to the points you want to make. 

Consideration #3 - The Role That Gender Might Play in Cross-Examination Strategy

Sometimes you may want to match up different people simply because of the potential perception of the jury. For example, in a situation where a person died and the surviving spouse was a female, the decision may be made to have a male attorney cross-examine the witness. Having a male attorney handle the cross-examination may help to avoid the jury taking the perspective that it looks like the female attorney was attacking the female witness in any way. 

Ideally, this decision would also involve determining if it is necessary to cross-examine the witness in the first place. This strategy may help the defense maintain credibility with the jury. 

Consideration #4 - How to Manage the Cross-Examination of Expert Witnesses

Each expert witness you cross-examine has the potential to present a different witness style. The expert witness could be the stereotypical arrogant retained expert, or they could be the expert that is just there to fight the whole time, or they could simply be a very matter-of-fact expert. How you approach this witness's cross-examination may depend on the expert.

Optimistically, a defense attorney will have a good deposition to reference before conducting the cross-examination. It’s also important to have a well-established outline. Even if you don't ask every question, the outline will help you know what you’re doing when you get in there. Additionally, you must have information ready if you’re going to impeach a witness, whether with an exhibit or their deposition. If it’s the deposition, have the page and line number; if it’s the exhibit, have it on hand. 

A great deposition is an often under-utilized tool for a successful cross-examination and is truly where defense attorneys should be setting up their trial cross-examination strategy. At Courtroom Sciences, our scientific approach to research strategies helps to deliver the best outcomes. From initial case assessments to mock trials and jury selection, we are committed to helping you and your client win.

Key Takeaways

●  A successful cross-examination strategy should include advancing your themes, getting key admissions, and making the key points supporting your case theory.

●  One of the first considerations for developing your cross-examination strategy may be determining whether to cross-examine a witness.

●  Sometimes you may want to match up different people from the litigation team simply because of their appearance to the jury. 

●  A great deposition is an often under-utilized tool for a successful cross-examination.

●  At Courtroom Sciences, our scientific approach to research strategies helps to deliver the best outcomes.