Prepare, Prepare, Prepare for Cross-Examination Wyatt B. Durrette, Jr.
Winter 2006 WINTER 2006 BUSINESS TORTS SECTION NEWSLETTER Cross-examination is the ultimate test of the trial lawyer's skill. It is the time in a trial where extensive preparation is the prerequisite to the flexibility which usually accompanies successful cross-examination. A successful cross-examination begins with identifying the specific areas in which you believe you can expose weaknesses in the witness’ testimony - either through prior inconsistent statements, the inability to explain objective contradictions, or logical weaknesses in the witness’ reasoning or analysis. Usually these factors will constitute a few of the critical parts of the witness’ testimony. They must be the focus of your attack. Your preparation must master the material surrounding these areas, committing as much to memory as possible and relying on notes only when necessary. While an outline of topic areas is ok (and necessary if you think you will overlook something important), you should not script the examination in advance. This allows you to listen carefully to the answers, which may be somewhat unexpected, and guide the flow of your cross-examination where the testimonial current takes you. Finally, keep the moral high ground. In today’s environment, a jury’s sympathy is likely to be with the witness and not with the often negatively-perceived “trial lawyer.” You can offset this initial advantage by quietly and politely discrediting the witness. Afterwards, a display of righteous ire might play well.
Most jurors are very offended by anyone who misleads them. You can shift their initial tendency to side with the witness, and do so in a way that creates a positive feeling towards you for doing your job, while remaining someone the jury likes. Wyatt B. Durrette, Jr. is a Business Torts Section member and a former Chairman. DurretteBradshaw, PLC, 600 E Main St., 20th Fl. Richmond, VA 23219-2441, T: 804/775-6809, 804/775-6911, wdurrette@durrettebradshaw.com. |
