By Walter Simpson
Excerpted from Pattern Cross-Examinations
- Be Selective
- Assess the Witness
- Assess Your Opponent
- Assess the Judge
- Attempt to Find Areas of Agreement
- Avoid “One Question Too Many”
- Start Strong and End on High Note
A trial lawyer needs to develop a strategy for cross-examination. This takes forethought and planning. Lawyers who do nothing more than cover all the points raised on direct examination of the witness only reinforce their opponent’s evidence.
On cross-examination, you have the luxury of choosing the areas of interrogation. Choose those areas where you think you can create some doubt and avoid those areas in which you cannot. You do not need to cover all the areas explored in the direct examination, and usually you should not attempt to do so. If you have no real chance of creating doubt about some area of the witness’ testimony on direct examination, there is no reason to cross-examine in that area. For example, in an automobile rear-end collision case, there usually is no issue as to the negligence of the driver of the automobile that struck the rear of the other car. In certain cases, it may make sense to cross-examine on the severity of the impact, but otherwise nothing can be gained by going over the way the automobiles came together. However, in cases in which the liability is disputed and the injuries are severe, it makes sense to concentrate on the facts during cross-examination, rather than the medical issues.
“I have no questions for this witness.”
In rare situations, the best strategy might be to forego cross-examination. For example, in a case involving a tragic accident, you may be better off not cross-examining a very sympathetic witness who really hasn’t added any new evidence. In a case in which the only real dispute is the liability, you may not want to cross-examine the nice neighbor who has testified as a health witness. On rare occasions, the direct testimony of an independent medical examiner will do little harm to your case. If you cross-examine him, he may hurt your case more than he did on direct. I have seen several occasions in which a medical provider will actually get stronger on cross-examination than he was on direct. With every witness, you must always be assessing the evidence as it comes in. Treat each case as unique and each witness as an individual, and exercise good judgment about whether to cross-examine and what issues to cover.
Every witness is different. Some want to argue with the interrogator. Some want to volunteer. Some witnesses are reluctant to talk much at all. Some cannot wait for the interrogator to finish his question before they start to answer. Some are cocky and arrogant. Some are meek and mild. Some make statements with little or no basis in fact for the statement. Some are overly emotional.
The parties, the experts and most other important witnesses usually are deposed before trial. Use the deposition as an opportunity to assess the witness and develop a cross-examination strategy based on his attitude and demeanor answering questions under oath. For example, if the witness tends to be argumentative at the deposition, you may want to try to “get under his skin” during trial. The more argumentative he becomes, the less likely the jury is going to be persuaded by what he says. If the witness has low self-esteem and cannot stand his ground at the deposition, your strategy might be to aggressively confront him at trial. If you have not deposed the witness in advance of trial, you can learn something about his personality, confidence, intelligence, etc., by paying close attention to his testimony on direct examination. In either case, however, you need to be ready to adapt your cross-examination strategy based on the witness’ performance at trial, even during your cross-examination. For example, below is an actual transcript of a cross-examination of a plaintiff during which I abandoned my outline halfway through, based on the witness’ answers and demeanor during the first part of my planned cross-examination.
In this case, the plaintiff had been in to see a chiropractor, my client, on October 9, and then to an emergency room for chest pain on October 10. He was released without treatment for coronary artery disease. Twenty days later, he suffered a heart attack with resulting damage to heart muscle. His claim was that both the chiropractor and the emergency room doctor should have run additional tests, diagnosed coronary artery disease and provided appropriate treatment.
Q: Now let’s talk about the chest pain. Is it your testimony under oath that you told Dr. Birkeness [the chiropractor] on October 9th that you were having chest pain, frontal chest pain?
A: I asked him why I was hurting in the front of my chest.
Use deposition to impeach critical testimony.
This is critical evidence. If the plaintiff told the chiropractor he was having chest pain, the chiropractor should immediately have referred him to a hospital or at least a cardiologist. If there is any way to refute the testimony, it must be done. Fortunately for me, in this case, the plaintiff testified to a different set of facts at his deposition. Accordingly, I begin this cross-examination with the deposition testimony.
Q: Well, in your deposition, you told us that the first time that you ever had frontal chest pain was on either October 29th or October 30th? Didn’t you tell us that?
A: I don’t know. I would have to look at the deposition.
Q: Let me ask you more specifically. Isn’t it a fact that you never did tell Dr. Birkeness about any complaints of chest pain?
Q: Didn’t you tell us that in your deposition?
A: I don’t remember.
Mr. Simpson: May I approach the witness, Your Honor?
The Court: Yes.
Opportunity to refute; permission to approach.
Many judges require that the witness be given a chance to admit or deny a specific question before allowing cross-examination with the deposition. The witness now has had that opportunity. I proceed with impeachment. Before doing so, however, I ask the court for permission to approach the witness with the deposition. This is good practice for several reasons: First, some judges require it and will admonish you if you walk up to the witness without permission. Second, it demonstrates the respect you have for the court. Third, it gives the appearance that the court is confirming the impeachment process. Fourth, it adds to the drama of the impeachment, drawing the jurors attention to what is about happen.
Q: Incidentally, sir, your lawyer was there with you during the deposition, right?
Q: And you raised your hand to swear to tell the truth, like you did here today?
Q: Did tell the truth that day?
Q: I asked you at Line 7, page 94 of your deposition, “Now the type of chest pain that you were having on October 30th, had you ever had that type of chest pain before?” And you said, “No,” correct?
Stay with the witness.
Here, you are standing next to the witness showing him the portion of the deposition you are asking him about. This draws the attention to the two of you and what you are about to ask. Furthermore, you are extending the courtesy of allowing the witness to see the testimony from which you are inquiring.
Q: Was that a correct answer at that time?
Q: The next question was: “You didn’t report that type of chest pain to Dr. Birkeness?” and your answer was, “No,” correct?
Q: Was that a correct answer when you gave it under oath at the time of your deposition?
Q: So the truth of the matter is that you didn’t have any conversation with Dr. Birkeness about chest pain, isn’t that correct?
Q: You were in to see him on October 9th because of back pain, isn’t that right?
Monitor witness’ reaction to impeachment.
The plaintiff has been embarrassed with his previous contradictory testimony and now knows he must be careful not to contradict anything else he said in the deposition. When you have embarrassed a witness in this fashion, carefully monitor his reaction. Some witnesses get defensive; some attack; some wither. Adjust your cross-examination and your tone accordingly. In this case, as evidenced below, the plaintiff became totally submissive.
Q: Did you ever go back to Dr. Birkeness after you saw him in his office on October 9th?
Q: Now, as I understand it, you went to the emergency room on October 10th, is that correct?
Q: And you were seen by Dr. Lounce?
Q: Isn’t it true that you complained of back pain when you went to the emergency room?
Q: Now after Dr. Lounce examined you, he prescribed Nalfon for you, correct?
Q: And he told you to follow up with Dr. Calhoun in four to five days, or as needed, or if you had an increase in your symptoms, or if you had new symptoms, correct?
Q: You understood those instructions from talking with Dr. Lounce, didn’t you?
Q: And in addition to getting this information from Dr. Lounce which you understood, you also got the instruction sheet from the hospital, is that correct?
Q: That was something that you could take home with you, for reference?
Q: And the instruction sheet is marked up here in this box: “The treatment in the emergency department is temporary. Often additional treatment is necessary,” etc., etc., etc.?
Q: You knew that box was marked because those instructions applied to you, correct?
Q: And then again, here, the nurse has summarized your instructions, “medications as directed, Nalfon,” correct?
Q: “Follow up with Dr. Calhoun next week,” correct?
Q: So there is no question about the fact that you understood these things?
Q: But you chose not to go to Dr. Calhoun, correct?
Q: That was a decision you had a right to make and that you did make, right?
A: That is correct.
Push a submissive witness as far as you can.
The plaintiff has been amazingly agreeable during this series of questions. I begin to wonder how much he will agree with if I continue to press him. At this point, I decided to proceed with specific fact-by-fact questions to see if the witness would continue to agree with me, rather than hit only the high points.
Q: You got to feeling better in three or four days’ time and never thought anything more about it?
A: That is correct.
Q: You continued to work pain-free until the incident on October 29th?
Q: Let’s talk about that incident. You’ve told us that, on October 29th, after lunch, you had nausea to the point that you vomited?
Q: You had some sweating associated with it, correct?
Q: You had shortness of breath, correct?
A: If that’s what it says.
Know when to abandon your outline and press the witness.
The plaintiff is now agreeing with me even when he doesn’t remember or is unsure of his answer. At this point, I totally abandoned my prepared questions and asked as many questions as I could think of to show the plaintiff’s own negligence.
Q: If the NorthKansas CityHospital records show that is the history you gave them, you wouldn’t quarrel with that, would you?
A: No. [He’s not quarrelling with anything.]
Q: You also were having what the hospital records referred to as epigastric pain—pain right in the top of your stomach?
A: If that’s what it says, yes.
Q: Do you disagree with that?
Q: Because of your family history, you’ve always been worried about having a heart attack, isn’t that right?
Q: But you chose to go ahead and work that day and not go in to see a health care provider, isn’t that correct?
Q: You didn’t call Dr. Calhoun?
Q: You didn’t call Dr. Birkeness?
Q: You didn’t call Dr. Lounce?
Q: You didn’t go back to Spelman-St. Luke’s?
A: No, I was on the east side of Independence.
Point out witness’ failings one by one.
I could have moved on after asking, “You chose to go ahead and work that day and not go in to see a health care provider,” but it is much more effective, especially with an agreeable witness, to point out the witness’ failings one by one. By asking about each care provider separately, rather than just lumping them all in one question, I draw this point out for emphasis with the jury. I make the witness verbally check off all the things he didn’t do, all his missed opportunities to help himself.
Q: OK. You are aware that there are a couple of emergency rooms in the Independence area, aren’t you?
A: I assume there are.
Q: You decided against going to any one of those, correct?
Q: OK. Now, as I understand it, again after lunch on October 30th, pretty much the same thing happened?
Q: And again, you had in the back of your mind that this could very well be a heart attack, right?
Q: You just didn’t want to admit it to yourself?
Q: You knew you were in trouble, right?
Q: You knew this was a serious condition?
Q: But you thought you would go back to work and just try to ignore it?
Devastating admissions have an impact beyond persuading the jury.
Usually you are cross-examining for the purpose of persuading a jury. However, this is an example of how cross-examination can have a more far-reaching effect on an issue or the case. This line of cross-examination convinced the trial judge and, later, the court of appeals that the plaintiff’s own actions precluded the defendants from being able to provide effective and timely treatment, as a matter of law.
Q: And you did go back to work?
A: Yes, for a little while.
Q: In fact, it wasn’t until somebody else told you to get off the job and go get medical attention that you finally left the job, correct?
Q: Still working in the Independence area at that time, right?
Q: The pain was getting worse and your condition growing more severe, isn’t that right?
Q: Again, you didn’t go to any of the hospitals in the Independence area, did you?
Q: You drove all the way to your home in North Kansas City, correct?
Q: As I understand it, you went in and changed clothes at your house?
Q: You even took a shower before heading to the hospital, didn’t you?
Q: Only then did you go to the hospital, correct?
Q: You didn’t get to the emergency room until around 4:30 p.m., is that right?
A: It was around that time.
Q: By that time, the symptoms were starting to ease, weren’t they?
Q: After you had an EKG, the doctors told you that you had suffered a heart attack, correct?
In this trial, the plaintiff’s testimony on cross-examination proved that the medical care providers were not given any opportunity to address the symptoms of his heart attack. The plaintiff admitted that he was experiencing symptoms of a heart attack on October 29 and 30, he knew he was “in trouble,” and he knew the situation was serious, but he didn’t want to admit to himself that he was having a heart attack. As a result, he delayed seeing any health care provider about the symptoms until it was too late to provide any effective treatment. At the close of the plaintiff’s case, the court sustained a motion for directed verdict based on fact that the plaintiff’s own negligence was the intervening superseding cause of his heart damage. In other words, the plaintiff had testified himself out of court. If I had stayed with the questions I had planned in advance, I never would have developed such strong evidence of the plaintiff’s own negligence.
Lawyers have different styles and competency levels. Knowing your opponent will help you make decisions on how far you can go before an objection will be made and on whether you should object to something your opponent is doing. You may want to develop a strategy that will compare favorably with your opponent. For example, if your opponent’s style is to be very pleasant and avoid doing anything that will anger a juror, you may want to be less aggressive yourself. If she is loud and aggressive, you may want to be mild and calm, as a contrast. If your opponent does not make objections, you may want to consider objecting only if absolutely necessary. Some lawyers believe it is not good to object to the questioning by an opposing party, while others like to object to break the flow of the cross-examination. By knowing your opponent, you can take advantage of whatever his or her strategy is.
If you have been in litigation with the opposing lawyer before, you will know his style and technique. If not, you may learn something about his approach from depositions in the case. If you really are not familiar with an opponent, make a few calls to someone who has litigated against him. If possible, drop in on one of his trials and observe for a while.
Knowing the traits and philosophy of your trial judge can be an asset in cross-examination. Some judges are quite liberal in ruling on cross-examination boundaries, while some are very conservative. With the liberal judge, you can venture out beyond the boundaries of normal cross-examination. With the conservative judge, you know that you will have to limit your cross-examination to the strict rules of relevancy, materiality, etc.
Some judges are quick to admonish the witness if he is not directly answering your questions. Others will generally leave you and the witness alone. Most judges, however, will assist you with a witness at some point if the witness continues with non-responsive answers. This is how you get the court’s assistance:
Attorney: Your Honor, I object to the witness’ answer on the basis that it was not responsive to the question.
The Court: Sustained.
Attorney: Your Honor, I also move that the answer be stricken and that the jury be instructed to disregard it.
The Court: The answer will be stricken. Ladies and gentlemen of the jury, I have stricken the last answer given by the witness. You are instructed to disregard it.
Attorney: Your Honor, I also request that the court admonish the witness to answer questions with a “yes” or “no” answer.
The Court: Mr. Jones, you are instructed to answer the question posed to you directly, with a “yes” or “no” answer if possible. If you want to explain your answer further, you will be permitted to do so, but you must first answer “yes” or “no” unless you cannot answer the question with “yes” or “no.”
This assistance from the court will help you control the witness and will cast the witness in a bad light.
While the primary goal of cross-examination is to cast doubt on the reliability of the witness’ testimony, a secondary goal is to get the witness to agree to as many of the elements of your case or defense as possible. The reason for this is to limit the disputed items to as few as possible. The jury’s decision will be easier and probably more reliable if the jury is not burdened with numerous factual disputes. If you are successful on both counts, you have persuasive material for closing argument—that is, that the witness’ testimony is not trustworthy, but even if it is, the witness agrees with several of the key elements of your case or defense.
In a medical malpractice case, the plaintiff must prove that the health care provider deviated from (fell below) the acceptable standard of care in treating the plaintiff. This necessitates proving what the standard of care is and proving that the defendant did not measure up to that standard of care. In cross-examining even the most recalcitrant witness, you should be able to get an admission as to the definition of the standard of care, the duty to comply with the standard of care, and the consequences of deviating from the standard of care. Here, on cross-examination of the defendant’s expert, the plaintiff’s attorney obtains agreement on issues of the standard of care.
Q: Dr. Spraye, you are familiar with the phrase, “standard of care,” aren’t you?
A: Yes, I am.
Q: Am I correct in understanding that doctors have a duty to exercise a certain level of skill and learning in treating patients?
A: Yes, that is the standard of care.
Q: And doctor, you agree that doctors must use that degree of skill and learning ordinarily used under the same or similar circumstances by members of their profession, correct?
A: Yes, that’s right.
Q: In other words, the standard of care requires a doctor to do what the other well-qualified members of their profession would do, isn’t that right?
Q: This is something that is covered as a part of your medical education and training, isn’t that right?
A: Yes, it is covered in medical school.
Q: You agree that if a doctor does not measure up to the standard of care in any given situation, the doctor may be held liable in a court of law for any damages he causes, correct?
A: Yes, that is true.
Q: You agree that a doctor who practices medicine accepts that duty to exercise the appropriate standard of care, right?
A: Yes, that’s right.
Q: And you would agree that the defendant in this case had the duty to exercise the appropriate standard of care in treating the plaintiff, correct?
A: Yes, that is true.
With this short series of questions, the defendant’s expert witness has agreed to: (1) the principles of “standard of care”; the definition of “standard of care”; (3) the consequences of failing to meet the appropriate standard of care; and (4) the applicability of the standard of care to the defendant-doctor in the case.
Avoiding the “one question too many” involves a tightrope walk between getting the point across and not allowing the witness a chance to explain his way out of an admission. If a cross-examination has gone well, the temptation is to make it a little bit better. However, with some witnesses, the next question or two allows time for the witness to reflect and figure a way out of the hole he is in or allows the witness to bring up something he wasn’t asked on direct examination.
Here is a classic example (from an actual case) of the “one question too many,” with devastating results for the cross-examiner. This medical malpractice case involved an obstetrician who had used forceps in the delivery of a baby. The forceps had caused brain and nerve damage to the baby, and the plaintiff’s theory of the case was that the doctor had used excessive force in using the forceps to deliver the baby. During the direct examination of the delivery room nurse, she testified that the physician, based on her observation, had used excessive force. The attorney for the defendant did a very good job of cross-examining the witness on the difficulty of delivering some babies, the necessity of using forceps on certain occasions, and the danger for the baby and the mother if the baby is not delivered quickly after the baby’s head has crowned. He then asked the following questions:
Q: Nurse Nelson, you have testified that Dr. Simon used excessive force in applying the forceps and pulling on the baby in an attempt to deliver the child, correct?
A: Yes, sir.
Q: You would agree with me that the word “excessive” is a subjective word that may mean different things to different people, right?
A: I suppose that is true.
Q: You did not have the forceps in your hands so that you could feel the amount of force being applied by Dr. Simon, isn’t that correct?
A: No, I didn’t.
Q: You would agree with me that the doctor must apply some force with the forceps in order to accomplish the delivery, wouldn’t you?
A: Yes, that is true.
This would have been a good place to stop, but the lawyer wanted to “gild the lily.” He wasn’t willing to end on a high (and safe) note. Instead, he asked the following question:
Q: How could you possibly say then, Nurse Nelson, that Dr. Simon used excessive force in using the forceps to assist delivery?
A: Because he put his right foot up on the rail of the bed and leaned backwards as he was pulling on the baby’s head.
This “one question too many” solicited a devastating answer and injected evidence that had not been developed during direct examination. Now everyone had a clear mental picture of the doctor’s actions, and no one doubted that he had used excessive force.
Do your best to be ready to proceed with cross-examination as soon as your opponent has completed direct examination. This means having your outline, notes, exhibits, etc., organized so that you can immediately stand and begin. You should appear to be eager to cross-examine, eager to discredit what the jury has just heard. I have seen lawyers lose the interest of the jury before even beginning cross-examination by shuffling papers and searching for documents and exhibits.
If possible, engage the witness on the last subject covered on direct examination and question the reliability of his testimony. This will bridge the direct examination to the cross-examination in a natural flow.
Choose those areas of dispute where you can cast some doubt. Do not, under any circumstances, simply go back over everything covered in direct examination, allowing the opponent’s witness to reiterate everything he has already said.
End your cross-examination on a high note. The jury is likely to remember the last point you make on cross-examination more easily than the middle part of the cross-examination. With the proper preparation, you should be able to identify the strongest point of your case to which you can get the witness to agree. Save this line of questioning for the end of your cross-examination, so that the last thing the jury hears is the witness agreeing with a significant element of your case.
The plaintiff alleges that he sustained injuries to his neck and back in an automobile accident in which he was struck from the rear by the defendant’s vehicle. However, discovery revealed a prior lawsuit in which he also alleged injuries from an accident in which he was struck from behind. In fact, he was still receiving treatment related to the first accident when the second accident occurred. Since liability is not really in dispute, there is no reason to cover the facts of the accident on cross-examination (unless the impact was minor). Your strongest point is that the plaintiff previously injured his neck and back and has recovered damages from someone else for those injuries. Your cross-examination should end on a note something like this:
Q: Mr. Devoe, you are claiming injuries to your neck and back as a result of this accident, is that correct?
A: Yes, it is.
Q: But you were involved is a similar type of accident four years before this accident, weren’t you?
A: Yes, I was.
Q: You made a claim for your injuries as a result of that prior accident, didn’t you?
A: Yes, I did.
Q: And you filed a lawsuit alleging injuries as a result of that prior accident, correct?
A: I did.
Q: The injuries you claimed in that prior accident were neck and back injuries, isn’t that right?
Q: You settled that prior case, didn’t you, Mr. Devoe?
A: Yes, it was settled before we went to court.
Q: The case you settled alleged permanent injuries to your neck and back, isn’t that right?
A: If that’s what the lawsuit says.
Q: So, you have already been compensated for neck and back injuries from a prior accident, isn’t that right?
A: Well, I settled the first accident claim.
Q: But now you are asking this jury to compensate you again for injuries to your neck and back, isn’t that right?
A: Well, this is a separate injury.
Q: You are claiming injuries to the same areas of your body, right?
A: Yes, neck and back.
Q: You were treated by the same doctor in this case that treated you in the prior case, right?
A: Yes, I went to Dr. Thorpe following both accidents.
Q: As a matter of fact, you were still seeing Dr. Thorpe for the injuries from the first accident when you went to him after this second accident, weren’t you?
Q: So you are asking that this jury award you money for injuries to the same parts of your body that were involved in the first lawsuit, right?
You have now asked this question twice, but this time you got a direct admission. You end the cross-examination with the strongest points you have in defense of the case, including an admission by the plaintiff that he has recovered for the same injuries previously.
Q: You went to the same doctor following both accidents?
A: That’s right.
Q: And you have already been compensated for neck and back injuries from the prior accident, right?
A: Yes, I said that before.
Q: No further questions, Mr. Devoe.
Walter R. Simpson has been litigating personal injury cases, representing both plaintiffs and defendants, since his graduation from the University of Missouri at Kansas City Law School in 1967. He has tried more than 200 jury trials and has been a frequent speaker at CLE Seminars. In 1974 Mr. Simpson was recognized by the Missouri Bar Foundation as the outstanding young trial lawyer in the Greater Kansas City Metropolitan area and was presented with the Lon O. Hocker Trial Lawyer Award. In 2001, the Kansas City Metropolitan Bar Association presented Mr. Simpson with the Dean of the Trial Bar Award, in recognition of 34 years as an outstanding litigator.
Mr. Simpson has served as President of the Kansas City Metropolitan Bar Association and President of the Kansas City Metropolitan Bar Foundation. He is currently a member of the Board of Governors of the Missouri Bar Association. He has been included in The Best Lawyers in America, published by Woodward/White, Inc., continuously since 1997 and has held a Martindale-Hubbell Peer Review Rating of AV, the highest possible rating for Legal Ability & Ethical Standards, for thirty years.