Cross-Examination Handbook-Book Review

Recently I was asked by Professor Ronald Clark to read and review his new book- Cross-Examination Handbook.

A Complete Source. Having read Francis Wellman’s book on cross-examination, which Professor Clark recognizes as a classic, I was struck by the  completeness and contemporaneousness of  Cross-Examination Handbook. This is a result of the authors: Professor Ronald Clark, Seattle University School of Law, a nationally known speaker and writer on criminal law and former prosecuting attorney in King County; Professor George Delke, University of Florida, a long time prosecuting attorney; and, William S. Bailey an accomplished personal injury trial lawyer in Seattle who also teaches at Seattle University. This trio draws on years of courtroom experience in criminal and civil trials to the benefit of  trial lawyers. Below are selected highlights.

Purposes of Cross. “The purposes of cross are to preserve and build upon your case theory or demolish the other side’s, and in this way persuade the jury.” The authors never lose perspective reminding us a trial is a story and human values are a necessary part of the story. “There is always a good versus evil component in a persuasive trial story… .” Cross-examination is an opportunity to tell your story through the adverse witness.  It is essential to do this for the jury because their decision making is driven by emotions rather then rational thought.  Use cross to appeal to the gut feeling of what is right and wrong.

Constructing the Cross. Our experienced trial lawyer authors teach to begin preparation by writing  out cross examination questions.  In doing this organize your cross into topical units (I think of my units as chapters). The authors teach cross-examine in clear simple language using nouns and verbs dropping the modifiers as they weaken speech. “Cross-examination is your opportunity to testify.”  Good cross “consists of you making substantive statements, and the witness affirming them.” Our purpose in cross-examination is to put our story before the jury. Our questions do not seek information. In fact good cross rarely involves a question. Good cross involves the lawyer making a statement the witness must agree with. Each statement should be short  and involve only one fact. Stack the short statements  one upon another to build your story.

Impeachment. At times we have a witness that must be destroyed. We will not be able to tell our story through this witness. Areas of impeachment covered by our authors include “Improbability,” Reduction -to-the Absurd,” Common Sense,” Contradictory Conduct,” and  “Prior Inconsistent Statements.” When we destroy we begin by locking “the witness into the current inaccurate testimony.” Next we show a motive for the erroneous testimony. After closing the exits for the witness, we spring the impeachment facts or evidence.

Controlling the Witness. Our authors cover dealing with the witness who fails to respond. My favorite is to “Repeat the Question.” It’s simple and it works. We ask the question. At times a witness will ramble away ignoring the question. Look away and wait for the witness to finish. Then turn to the witness and say, “now let’s try this again” and repeat the initial question. If the witness rambles again repeat the question again. The witness will soon realize he must answer the question and the jury will want him to answer the question.

Thumbs Up. The book discusses all aspects of cross-examination including character and conduct at trial, preparing cross examination, expert witness cross, and dealing with forgetters, perjurers, and other types of witnesses.  The book goes beyond the mechanical and into the psychological and jury dynamics of cross and trial. I like the writing style and the layout. I give the book two thumbs up. I am using it to prepare for my upcoming trial. Thank you professors for this valuable resource.

    19 Responses to “Cross-Examination Handbook-Book Review”

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    19. Kelsey Harrist says:

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