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Cross Examination

Cross Examination. The Role of Cross Examination Direct examination is lawyers’ best opportunity to win their case Cross examination may provide lawyers with a chance to lose it. A poor direct examination can be boring and aimless, but the witnesses are generally helpful.

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Cross Examination

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  1. Cross Examination The Role of Cross Examination • Direct examination is lawyers’ best opportunity to win their case • Cross examination may provide lawyers with a chance to lose it. • A poor direct examination can be boring and aimless, but the witnesses are generally helpful. • A poor cross examination can be truly disastrous.

  2. Cross Examination e. Cross examination should be limited t a maximum of three points and lawyers must describe them in details. In addition, three points have to be connected.

  3. Cross Examination The law of cross examination • Leading questions permitted. • Limitation on scope. • Other restrictions • Argumentative questions. • Intimidating behavior • Unfair characterizations • Assuming facts • Compound and other defective questions

  4. Cross Examination The content of cross examination • Consider the purposes of cross examination. 1.repair or minimize damage 2. enhance your case 3. detract from their case 4. establish foundation 5. discredit direct testimony 6. discredit the witness 7. reflect on the credibility of another

  5. Cross Examination b. Arrive at the “usable universe” of cross examination 1. The entire universe *Does it make my case more likely? *Does it make their case less likely? *Is it a predicate to the admissibility of other evidence? *Does it make some witness more believable? *Does it make some witness less believable?

  6. Cross Examination 2. The usable universe *Is a friendly witness available to present the same facts? *Can the information be obtained only on cross examination? *Will the facts be uniquely persuasive on cross examination?

  7. Cross Examination C. Risk averse preparation • Risk averse preparation for cross examination begins with consideration of your anticipated final argument. *What do you want to be able to say about this particular witness when you address the jury at the end of the case? *How much of that information do you expect to be included in the direct examination? 2. Write out the portion of a final argument that you would devote to discussing the facts presented by this particular witness.

  8. Cross Examination The organization of cross examination • Organizing principles • The organization of a cross examination can be based on the four principles of primacy and recency, apposition, repetition, and duration. 2. Cross examination is your opportunity to tell part of your client’s story in the middle of other side’s case. 3. Cross examination is never the time to attempt to gather new information. Never ask a witness a question simply because you want to find out the answer 4. An effective cross examination often succeeds through the use of implication and innuendo. It is not necessary and it is often harmful, to ask a witness the “ultimate question.

  9. Cross Examination b. Guidelines for organization • Do not worry about starting point • Use topical organization • Give the details first • Scatter the circumstantial evidence • Save a zinger for the end

  10. Cross Examination How do you identify your fair-safe zinger? • It must be absolutely admissible. • It should be central to your theory. • It should evoke your theme. • It must be undeniable. • It must be stated with conviction.

  11. Cross Examination c. A classic format for cross examination • Friendly information • Affirmative information • Uncontrovertible information • Challenging information • Hostile information • zinger

  12. Cross Examination Questioning technique How do you ask questions that will insure your success? • Short • Leading • Propositional

  13. Cross Examination • Planning for control. • Avoid written questions • Using an outline • “Referencing” your outline

  14. Cross Examination B. Questions that achieve control • Use incremental questions This technique allows you to do two things. • It cuts off the escape route for a witness who is inclined to argue or prevaricate. • It lets you know early in the sequence whether the witness is likely to disagree with you

  15. Cross Examination 2. Use sequenced questions for impact 3. Use sequenced questions for indirection 4. Use sequenced questions for Commitment 5. Create a “conceptual corral” 6. Avoid ultimate questions 7. Listen to the witness and insist on an answer.

  16. Cross Examination C. Questions that loses control • non-leading questions • “why” or explanation questions • “Fishing” questions • Long questions • “Gap” questions • “you testified” questions • Characterization and conclusions

  17. Cross Examination D. Reasserting control • Refusal to agree • Determine why the witness has refused to agree b. Retreat to constituent facts 2. Invited explanation • Determine why the witness has explained 3. Impermissible lack of cooperation • Obtaining help from the judge • Reasserting control by yourself 1. pointed repetition 2. discipline

  18. Cross Examination Ethics of cross examination • Basics for questioning • Factual basis • Legal basis b. Assertions of personal knowledge c. Derogatory questions d. Discrediting truthful witness e. Misusing evidence

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