Pozner and Dodd: “The Only Three Rules of Cross-Examination”

Jamison KoehlerTrial Advocacy

Much of what I needed to know about cross-examination came from a one-hour training session at the public defender’s office in Philadelphia early on in my career.  Fred Goodman led the session. You use short, declarative sentences, he taught us, to tell your side of the story. You use a rhythm and cadence in which you reward the witness for cooperating with you. You get the witness to agree with you on as many facts as possible that support your theory of the case.  And you narrow the scope on any areas of disagreement.

Q:            You pulled my client over.
A:            Yes.
Q:            You pulled him over because of a broken taillight.
A:            Yes.
Q:            My client was driving within the speed limit.
A:            Yes.
Q:            Apart from the broken taillight, he was obeying all traffic regulations.
A:            Yes.
Q:            My client pulled over immediately.
A:            Yes.
Q:            He was cooperative with you.
A:             Yes.
Q:            He produced his driver’s license.
A:            Yes.
Q:            He produced his registration.
A:            Yes.

Goodman’s approach is consistent with the three rules of cross-examination laid out by Larry Pozner and Roger J. Dodd in their treatise, Cross-Examination:  Science and Techniques.  The difference is that Pozner and Dodd spell out in convincing detail why this approach is so effective.

Pozner and Dodd’s first rule is that you only use leading questions.  Although some experienced (or just cocky) lawyers might think they can get away with open-ended questions in certain situations, Pozner and Dodd claim that this is always a mistake.  It is not only that the witness could eviscerate your case with some unexpected answer.  It is also that you never want to relinquish control over the cross-examination.  You don’t want to signal to the witness that he can answer with anything less than short answers to your questions or that he is now free to volunteer information.

Not asking anything but leading questions also means that you avoid seven dreaded words:  who, what, when, where, how, why or explain.   “These words create the polar opposites of closed-ended questions.  These words invite uncontrolled, unpredictable, and perhaps unending answers.”

The second rule is that you only ask one new fact per question. Keep it simple, stupid!  The reason for this is obvious. Compound questions can confuse the witness and the finder-of-fact, and, as with the first rule, this rule prevents you from losing control.  It also enables you to emphasize certain points that are helpful to your case, allowing you to string out helpful facts for maximum impact.

Your questions should be as specific as possible. They should also be aimed at eliciting specific facts, not conclusions.  You don’t ask, for example, whether or not a person was “wealthy” or “negligent.”  You ask instead about their specific habits and actions, allowing the finder-of-fact to draw his or her own conclusions until you can tie everything together during argument.

Although it is rare, Pozner and Dodd say that in some cases when you are using the short, declarative sentence approach, opposing counsel (or even a judge) will object either that you are not asking questions or that you are testifying for the witness.  The latter objection is easily dismissed for the same reasons you are allowed to use leading questions. As for the objection that you are not asking questions, you can respond by repeating the exact same short, declarative statement, this time followed by a simple “correct?” or “right?”  Opposing counsel looks stupid or petty for having quibbled with you.

Finally, Pozner and Dodd’s third rule is that you start with the general and proceed to the specific.  You want to break the cross-examination into separate and definable goals:

Each section of cross-examination must have a specific goal.  It must be so specific and so clear that the cross-examiner, if asked at any time without notice (judges are inclined to do so), can identify the factual point she is seeking to make.  Another way of envisioning this is to view cross-examination as a series of pictures that must be painted. 

In other words, Fred Goodman knew exactly what he was talking about.