This is the first in a series of litigation tips and treasures.
CROSS-EXAMINATION
To those of you paying attention to the Trump trial (I am not), you will see a lesson in how not to cross-examine a witness. The time-honored, hard-and-fast rules of the cross are: (1) Do not try to prove your case through the other side's witnesses; (2) Do not ask a question that gives the witness a chance to reiterate the case against you; (3) Only ask a leading question; (4) only ask a question you know how the witness will answer, and it helps you; and (5) be sure you have the backup for any fact you wish the witness to address.
Out of over a hundred criminal and civil trials, we have only won two, primarily based on cross-examination. A handwriting expert was so arrogant he invited a thorough inquisition regarding his opinion that my client was guilty. I walked him through each word and each letter of each sentence. The jurors unanimously decided my client was not guilty as they could tell the witness was full of himself, and their opinion was just as plausible as his.
The other was a government contracts case where the DCAA auditor was also arrogant and was playing lawyer interpreting regulations he had no business addressing. When I pointed out on the cross that the critical language was disjunctive, not conjunctive, the witness collapsed, and the government's claim against my client went with him.
Some lawyers think they are so skilled that they eventually will score big points with the fact finder if they drone on and on trying to make their case through cross-examination. The witness they are trying to "break" is hostile. Why not present evidence from a friendly source? I've received a great benefit from not crossing the other side's witness than from adding to my burden by trying to make their witness mine.
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