Goal-Oriented Cross Examination

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Your presumption about cross-examination is that
you should not do it
. That forces you to think through why you are going to ask this particular witness questions. And you need to have a good reason. You may be entering hostile territory, and you should be conducting a raid, not an invasion.
Major Sitler,
An Approach to Cross-Examination: “It’s a Commando Raid, not the Invasion of Europe”
, Army Law., July 1998, at 80.

  • First ask, should I cross this witness?
    1. Did the witness significantly damage my case?
    2. Is this witness important?
    3. What are my goals?
    4. Can I conduct an effective cross?
    5. Can I conduct a safe cross?
    6. Can I get the information I need from another witness?
    7. Is the issue that she testified about in dispute?
  • Then, examine your goals for conducting this cross-examination.
    1. Damage this witness’ credibility.
      1. You could destroy the witness’ entire credibility, through story inconsistencies, by exposing bias or a reason that this witness is lying, or through prior convictions.
      2. You might attack just a limited subset of credibility, like the ability to perceive or remember. You are not saying that his witness is a liar; rather, you are saying this witness is mistaken.
    2. Elicit facts that are helpful to my case.
      1. Here, you have to balance the risk that you are entering hostile territory with the value that comes by getting concessions from a witness that was called by the other side.
      2. Under concession-based cross-examination, you elicit facts from an opposing witness because those facts carry greater weight with the jury since the jury knows the witness was not called to assist the other side.
      3. When eliciting concessions, the lawyer seeks agreement by an opposing witness of relevant areas of the lawyer’s own “story.”
    3. Elicit facts that damage the other party’s story.
      1. The lawyer is not attempting to tell a story, but rather attempting to unravel the one told by the opponent.
  • In order to identify what your goals are (and therefore, whether you should cross-examine this witness), you need to do a thorough case analysis early in the process. See the Case Analysis outline. If you have constructed your arguments in advance using the method found in that outline, then you will see that your “especially whens” and “except whens” form the titles of your cross-examination chapters, which we will discuss below.

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