On Cross Examination, here are my selected highlights from Francis Wellman, The Art of Cross Examination:
First Inquiry. After direct examination first ask if it is necessary to cross examine the witness. Only cross examine when the witness has damaged your case or when you can use the witness to further your case.
Manner of Cross Examination. As a general rule begin in a courteous and conciliatory manner. This has a greater chance of the witness losing any fear of cross examination. This gives a higher likelihood of inducing the witness into a discussion in a fair-minded spirit. This results in a better chance of the witness admitting the weaker links in his testimony.
The Damaging Answer. Wellman teaches even a cautious cross examiner will at times get a damaging answer. For the experienced lawyer a damaging answer will never elicit a response outside of a matter of course attitude so the answer “will fall perfectly flat. He will proceed with the next question as if nothing had happened… .” Another alternative is to give an incredulous smile as if to say “Who do you suppose would believe that for a minute?”
The Manner of Cross. Draw out mistakes by inference rather than direct question. Use questions that allow the jury to see there is another more probable story (to be told later on). Avoid the mistake, common among inexperienced lawyers, of making much of trifling discrepancies. “Juries have no respect for small triumphs… .” Under no circumstances put a false spin on the words of the witness. There are few faults more fatal.
The Sequence of Cross. If you have a document written by the witness in which he takes a contrary position to his direct, avoid the mistake of showing the document to the witness before setting the predicate. Rather, begin by having the witness repeat the statements he made in direct that will be contradicted by the document. Then have the witness agree this is his statement and there is no doubt. Then introduce the prior inconsistent statement by having the witness agree to its authenticity. Next with the foundation set read the inconsistent statement. Move away from the witness for a period of time saying nothing as the jury looks at him sitting before them with his inconsistent statement. When you resume move on to a different point. Always end with a victory. “If you have done nothing more than to expose an attempt to deceive on the part of the witness, you have gone a long way toward discrediting him with your jury.”
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