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12 Essential Steps Before a Cross-Examination

Few attorneys have the time or budget to do detailed preparation for cross-examination of every witness.

And even if the budget makes it possible, time spent on other aspects of trial preparation will force counsel to take shortcuts. When time is short, these 12 tasks are the bare minimum necessary for cross-examination preparation.

This material is reproduced from the CEBblog™, 12 Must-Do Tasks Before Cross- Examination, (https://blog.ceb.com/2015/05/11/12-must-do-tasks-before-cross-examination/) copyright 2015 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).

    1. Read the deposition of the witness to be examined. Skim over disputes between counsel and routine background material, but read line-for-line all substantive sections of the deposition. Place in the witness file the three or four pages of deposition that are central to the proposed examination.
    2. Place in the witness file the documents that must be discussed with the witness. There have been few cases tried that had more than ten documents critical to the jury’s decision. Pick those ten (or fewer) and let the opponent concentrate on the other ten thousand documents.
    3. Make notes of your thoughts during document review. During review and coding of the depositions, exhibits, and other documents, many valuable ideas will occur to you. Jot them down to insert later in the trial or witness file.
    4. Develop a simplified chronology of the case. To control the case, it’s vital to master the chronology. If there are numbers, names, technical points, or dates that are difficult to remember, make a memory aid list and use it as a prompter during trial.
    5. If possible, personally prepare the chronology and issue coding. Nothing helps memory more than doing the detail work yourself.
    6. Get familiar with cross-examination references. If the cross-examination will refer to a locality, object, or document, become familiar with it (e.g., visit the suite of rooms where a contract was drafted, look at the counterfeit bills seized by the agent to be examined).
    7. Forget about interrogatory answers and responses to admissions. It’s hard to use these discovery responses smoothly during an examination. The witness will usually testify consistently with his or her earlier interrogatory answers or admissions, making the discovery material superfluous.
    8. Block out the proposed examination by topic only. For each topic, keep in mind the two or three major themes to make with the witness. If you’re unable to master the details, don’t forget to keep coming back to those main themes.
    9. Give the jury the documents. Make sure that the jury can see the two or three documents that you reviewed in detail with the witness, while the witness is testifying about them. The jury will get restless if it can’t see the document that’s being discussed.
    10. Mentally review the main evidentiary points (including objections). Refer to the Evidence Code as necessary. Psychologically prepare for surprise answers and hostile rulings from the trial judge.
    11. Review for riskiness. Be sure that the proposed examination doesn’t require taking undue risks with the witness, but consider whether some risk-taking is necessary to win a difficult case.
    12. Prepare your witness folders. Put the witness’s deposition transcript, your blocked-out areas of examination, and the key exhibits into a folder labeled with the witness’s name.

When trial is not imminent and you have the time to spare, do yourself a favor and review all the practical tips and suggestions on preparing to cross-examine in CEB’s newly updated Effective Direct and Cross-Examination, chap 3.

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