If you are like me, your views on cross-examination are heavily influenced by two different sources/authorities. First, there is Irving Younger’s lecture on the “Ten Commandments of Cross-Examination,” which was shown to me during my initial training as a public defender in Philadelphia. Second, there is Francis Wellman’s book on The Art of Cross-Examination, a copy of which was sent to me the moment I took that job.
Now, happily, there is Cross Examination: Science and Techniques by Larry Pozner and Roger Dodd. Though paying tribute to both Younger and Wellman, this treatise points out where they both fall short. The emphasis on hard work, training, and preparation over innate ability and experience is good news for practitioners like me who, perhaps lacking in natural talents, are still trying to learn the craft.
The problem with Younger’s lecture, according to Pozner and Dodd, is that it contains “many admonitions that the cross-examiner would recognize . . . only after breaking the commandment”: Telling someone not to ask the one question too many, for example, is like instructing a tennis player not to miss his or her first serve. “It is impossible to learn how to cross-examine by learning what the lawyer must not do.”
Likewise, by referring to cross-examination as an “art,” Wellman suggests that cross-examination:
has no rules or fixed reference points. It cannot be taught or learned, but only viewed in wonderment and awe. A master of the “art” of cross-examination spins marvelous tales, befuddles the witness, and miraculously emerges with incredibly damaging omissions. Supposedly, this is performed in mysterious way that mere lawyers cannot possibly comprehend, let alone learn.
In other words, Wellman’s approach suggests that you either have the natural ability to be an effective cross-examiner or you don’t.
Cross-examination should instead be viewed, Pozner and Dodd argue, as a science with “firmly established rules, guidelines, identifiable techniques, and definable methods,” all of which can be described, practiced and learned. Again, this is encouraging news for people who are willing to devote the time the time to acquire those skills: “Thorough preparation, mastery of technique, and execution of a solid plan produce more courtroom victories than all the flash, glitz, and strokes of supposed courtroom brilliance combined.”
Pozner and Dodd begin by quoting Wigmore on the importance of cross-examination: “it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” They then seek to shift the focus: Instead of dreading cross-examination as an exercise in “damage control,” cross-examination should be welcomed as an opportunity to fill in elements of the proponent’s own version of the story. Facts brought out through the opponent’s witnesses can somehow seem so much more persuasive.
The secret to effective cross-examination is hardwork and preparation, not “oratorical tricks and showmanship.” You succeed not by “creating a single beautiful cross-examination” that you can tell all your friends about or by “devastating” the witness as on T.V. In fact, say Pozner and Dodd, to focus on witness devastation is to “place the ego needs of a crss-examiner over the factual needs of the case.” Instead, the goal is to marshal the facts in support of a series of carefully identified goals. The effective cross-examiner is the plodder and the worker, not the showman or the hero. There are no dramatic “aha” moments. Sometimes you are not even aware that the cross-examination has been effective until much later in the trial.
I will have more, I am sure, on the “three rules of cross-examination,” on “loops/double loops/spontaneous loops,” and on other insights from Pozner and Dodd in later posts.