Deconstructing the “Ten Commandments” of Cross-Examination
Many lawyers are familiar with the “Ten Commandments of Cross-Examination” delivered in a memorably passionate fashion by the late Cornell Professor Irving Younger in a famous 1975 lecture.
More than four decades on, and in a different century, how do those ten “commandments” stack up? In my view, they remain as salient as ever and serve as an excellent reminder of what to do and what not to do when preparing for and conducting cross-examination. In this article I revisit the ten “commandments” and offer some ideas that have worked for me in practice.
The ten commandments are:
- Be brief
- Use plain words
- Ask only leading questions
- Be prepared
- Listen
- Don’t get into a quarrel
- Avoid repetition
- Disallow witness explanations
- Limit questioning
- Save the main point for the summation
Purpose of cross-examination
Before looking at the commandments, it is helpful to bear in mind the purpose of cross-examination. It is sometimes misunderstood. It is not to “get information from the witness”. It is not to “get a witness to change his or her story”. It is also not about “destroying” the witness with clever contradictions or worse, aggression and intimidation. Instead it is another means of projecting your client’s case theory but via a witness. Ideally, it should be a process of extracting helpful admissions or concessions that plug directly into your client’s case theory.
Commandment One: Be Brief
Effective cross-examination requires very short leading questions that call for simple answers, preferably “yes” or “no” answers. Contrary to instinct, long questions are not powerful. They tend to invite long answers – assuming they are understood in the first place. By contrast, short questions encourage a short answer and discourage witness commentary. Aim to lead the witness with one fact per question and almost always refrain from asking open-ended questions.
Commandment Two: Use plain words
Powerful cross-examination is the art of asking short questions in the right order. If the question put involves multiple propositions, split them up. Use simple language. Verbose language is likely to confuse a witness and will jettison any attempt at eliciting helpful admissions or concessions.
Commandment Three: Leading questions
Leading questions are the exclusive domain of cross-examination. Exploit this! The strategy should be fully utilised in cross-examination. Leading questions are a means of (politely) controlling the witness – they take the witness to where you want to go. Asking a hostile witness an open-ended question usually invites disaster and should be avoided.
It is often possible to ask a series of questions, the answer to all of which you know is “yes”, culminating in a critical question, the answer to which you need for your case to be “yes”. It is good practice to get the witness accustomed to answering “yes” to your questions leading up to the critical culminating question.
Commandment Four: Be Prepared
It is said that, “There is no shortcut, no royal road to proficiency, in the art of advocacy”. It just takes preparation, every time (and often then some). The resounding consensus is that “preparation” is the most important aspect of cross-examination. Simply, the cross examiner needs to be thoroughly across all details of the case and have a clear plan for the cross-examination. This includes having a good command of where all documents are and a ready ability to take the witness (and therefore the Court) to such documents. There is nothing more unpersuasive than the very obvious hunt for the right document, mid question…
Commandment Five: Listen
Sometimes it is easy to miss an answer because you are too busy thinking about the next question. Listening to the answer is essential. It might otherwise, for example undermine a helpful answer you have already elicited. Listening also entails being alert to the manner in which a witness might be answering a question, including, their body language and manner, not merely the words being said.
Commandment Six: Don’t quarrel
If questions are truly short, simple and clear, they should leave no room for debate. If the witness tries to quarrel, don’t engage; just press your question. The happy medium is to be forthright, without being overly aggressive. Be polite but firm. The remedy for an argumentative witness is to show the judge how argumentative the witness has been without joining in the argument. When handled correctly, a “difficult” or argumentative witness can be a gift. An argumentative witness is an opportunity to make your client’s case stronger.
Commandment Seven: Avoid repetition
Cross-examination should not be a repeat of the matters already in the evidence in chief. Requiring a witness to in effect repeat their evidence in chief and confirm parts of their affidavit merely gives more weight to their evidence. Cross-examination should be probing the weaknesses in the witness’ account, not the strengths.
Commandment Eight: Disallow witness explanations
The cross examiner should control the witness. This means (politely) ensuring the witness answers questions put, and does not “go off-piste”, for example, offering explanations or opinions.
Commandment Nine: Limit questioning
Each question should be designed to extract a particular piece of information, and no more. Once the answer is obtained, do not ask the question in another way – it risks a different answer being provided. As such, when you get what you need, stop. And sit down. Do not ask one question too many. Be like a surgeon; in and out. Or, as Irving Younger said “If you have struck oil, stop drilling.” Only ask what you need to do. Don’t dig further.
Commandment Ten: Save the main point for summation
Don’t give the witness an opportunity to make up an explanation for an inconsistency. The time for alerting the Court to inconsistencies is in submissions, not with the witness. Doing so in cross-examination exposes you to the risk that the witness might come up with an explanation contrary to the case you are putting.