A Guide to Direct Examination and Cross-Examination

Vol. 31 No. 5

ByJack E. McGehee

Jack E. McGehee is senior partner at McGehee, Chang, Barnes, Landgraf in Houston, Texas, and specializes in personal injury trial law. This

article is excerpted and adapted from the author’s book The Plaintiff’s Case: From Voir Dire to Verdict (1997).

Witness examination is the “meat and potatoes” of a jury trial. Contrasted with the flexibility of opening statement, witness

examination is more rigid, often more mundane, but also more precise. These qualities are both strengths and

weaknesses. Countless cases have been lost by lawyers who have blockbuster opening statements but who failed to

appreciate adequately the purpose of direct and cross-examination.

Direct examination is your turn to put your money where your

mouth is—to let the jury hear from the witnesses you’ve said will prove the case or see the documents you said will set
your client free. Cross-examination, on the other hand, is where you limit damage by pinning the witness down with very
specific questions—and by knowing when to stop asking questions for the sake of your case.

Direct Examination
Regardless of the brilliance and eloquence of voir dire and opening, the jury is eager to meet the people they’ve been
hearing about, to listen to real evidence, to go to work.

For good or bad, jury members are confident their impressions of the litigants are correct and complete. The introductory
moments of direct examination are a valuable chance to show jurors there is more to be heard, learned, and assessed.
Although the trial to date has centered on the lawyers, now both spotlight and style shift to focus on witnesses and
testimony. That shift in no way implies an attorney’s abdication of courtroom command, however. In fact, the style shift
underscores command as it yields the starring role and assumes the vital function of facilitator. The jury, therefore, sees a
new and comforting facet of attorney competence, confidence, and mastery of the case.

Instead of narrative teaching, direct examination shifts to short, crisp bursts of inquiry that invite attentive listening and
satisfy curiosities. The staccato style quickly is perceived as a juror service, almost instantly voicing questions as they pop
into the jurors’ own minds. For example, if a witness finishes an answer by stating, “I was shocked,” the greatest jury
service (and highest drama) is performed with a prompt and simple “Why?”

Qualities of a good direct examination. After analysis of the available evidence, the next most important decision is
how testimony will be “packaged.” If the witness will tell a story, the best form is a chronological line of inquiry, beginning
as early as is pertinent and ending in the courtroom. Example:
 When did you first lean about Timmy's condition?
 What happened after that?
 Then what happened?
On the other hand, a witness whose testimony supports a case theme or lists reasons why the event in question might
have occurred will be showcased better using a “logical” line of inquiry. Example:

 Please list for us all the reasons why the machine was dangerous.
 Why don't you stand up and write them on the blackboard as you explain them to us.
A combination of the two approaches, when appropriate, will add variety and make the examination more interesting.

Accrediting the witness. Early on, probably first, explain how this witness fits into the big picture. Using and annotating
the visual aids (storyboard or checklist) used in opening works well here. Example:
 Now you actually saw the accident?
 Let's discuss everything you saw.
 What did you see first?
Framing questions. The trial’s purpose is to connect the jurors’ minds and hearts to the facts of the plaintiff’s case.
Common, straightforward language enhances the connection; “lawyer talk” is static on the line. A question that begins with
a stuffy “Tell the ladies and gentlemen of the jury” isolates the jury and impedes communication. Better is a simple “tell
us.” Instead of the formal “state your name,” an informal “introduce yourself to us” moves things forward more gracefully.
A greater threat is that the impact of a key witness can be diminished if defense counsel’s barrage of objections interrupts
testimony. Careful question construction—with special attention to first words—can avert most “leading” objections:

 Who
 What
 Where
 When
 Why
 How
 Describe
Using eye-lines. After a witness is sworn in, a well-prepared lawyer need never consult notes or look away from the faces
of the witness and (occasionally) the jurors. It is similarly wise to avoid looking to the judge for feedback or reaction.
Doing so risks missing a facial expression that calls for pause, a grimace that needs response, or a reaction that suggests
an important point requires clarification. Undivided attention to the witness emphasizes the importance of the testimony
for the jury; the lawyer’s capacity to respond to the moment underscores the exchange’s spontaneity and the advocate’s
command.
Don’t lead, but tag the question. Before a parade of “What happened next?” questions becomes tiresome, one should
capitalize on a favorable witness response with a “base-tagging” technique. A repetition of the favorable response to tag
the next question (“After you saw the defendant’s face, what happened next?”) amplifies importance and varies the pace
while it offers a sense of logical and unrehearsed dialogue between examiner and witness.
Using vocal inflections. In normal conversation, questions end with an upward vocal inflection. Rote intonation implies
that witness and testimony are dull and unworthy of attention. A vocal rise, on the other hand, segues attention to the
witness and piques the jury’s curiosity.
Styling: A three-way conversation. A perfect opening statement sounds exactly like we are talking to a trusted friend
about something that might change her life. Similarly, the perfect direct examination sounds like two interested people
having a normal conversation about an exciting subject; the jury is welcomed as the conversation’s third party. No matter
how tempting it might be to mimic the successful, compelling approaches of mentors and heroes, a lawyer’s most effective
trial style is consistent with the mood and tone established in voir dire and opening—competent, helpful, decent, and real—
with honor and confidence enough to reveal the contents of the attorney’s head and heart to the jury.
Programming for primacy and recency. Most memorable data come first and last in a presentation. Keep this in mind
when planning and outlining any witness’s testimony. A wise examiner often kicks off by positioning the witness in the
case, then builds to the questions for which the witness was called for a final flourish of testimony that reinforces case
themes.
Cross-Examination
Cross-examination’s role is damage control. If it is done well, the hostile witness will not gain much ground. If it is done
poorly, however, cross-examination can result in a turning of the tide. An important, and obvious, goal during cross-
examination is to avoid assisting the witness with being persuasive to the jury.

The two most difficult tasks facing us in cross-examination are eliminating wiggle room in our questions and knowing when
to stop. Wiggle room is available to the hostile witness whenever the question asks too much. We should avoid wiggle
room by asking questions that can be answered only “yes” or “no.” A string of “yes” answers implies that the witness has
been won over; a string of “no” answers implies some kind of weakness or failure on the part of the witness.

Q: You’re not a medical doctor.

A: No.
Q: You never studied toxicology.
A: No.
Q: You don’t know the scientific theories that support Breathalyzers.
A: No.
Q: You don’t even know how a Breathalyzer works.
A: No.
Q: So you have no opinion about how the Breathalyzer registered 0.20 after you were pulled over by the policeman.
A: No.
Superb cross-examinations have been compromised when the examiner did not know when to stop. An advocate who gets
greedy or compulsive after scoring big points sometimes pursues untested or equivocal answers that risk both momentum
and the dramatic “high note.” Gauging when to sit down is often the most important power tool in the cross-examiner’s
tool box.

Qualities of a good cross-examination.

Questions. Planning the testimony all the way through, with focus on damage control, produces questioning that preserves
courtroom command and reaffirms that the plaintiff’s advocate is more interesting to the jury than the defendant’s
witness.
Good questions:

 Are leading
 Are short
 Are simple
 Maintain control
Seek facts, not conclusions. The opponent’s witnesses are “their” witnesses. It’s not on their agenda to support the
plaintiff’s case. It is important to keep this in mind, particularly when plaintiff’s attorneys are so saturated in case details
that certain facts lead to conclusions that seem obvious and inevitable. Even when they look like sure winners, it’s best to
avoid questions that run afoul of this wisdom. Safer is stronger in cross-examination—and it’s safer to stick with facts.
Poor example:

Q: The plaintiff was fired because he hurt himself on the job, wasn’t he?
A: No. The plaintiff was fired because he didn’t do the job.
Good example:

Q: The plaintiff was hurt on February 12, 1996, correct?

A: Yes.
Q: You learned about his injury on February 13, 1996, correct?
A: Yes.
Q: And you fired him on February 14, 1996, correct?
A: Yes.
The examiner. It is important to protect the investment of head and heart made in voir dire and opening and to use cross-
examination to deepen the impression that the jurors have a reliable and accurate picture of the advocate.
The effective cross-examiner is:

 Friendly Courteous
 Respectful
 Efficient
 In command
 Requesting facts, not conclusions
 Aware of a “high note” and ready to sit down after one occurs
The effective cross-examiner does not:

 Argue over irrelevant details

 Ask a question without knowing the answer
 Give a witness a chance to explain
 Ask “Why?”
Asserting authority with question structure. Leading questions that begin with a statement and leave the query to the end
reinforce command by underscoring that the examiner is completely confident of the answer. It is better to construct the
inquiry with the questions coming after a statement of pejorative fact. Example: “And you flunked the Breathalyzer test,
didn’t you?”
Words/phrases to avoid:

 Did you . . . ?
 Do you . . . ?
 Have you . . . ?
 Is there . . . ?
 Was there . . . ?
 Could . . . ?
 Would . . . ?
Common objections during cross-examination. Good cross-examination controls the damage done by the opponent’s
witness, while it seeks opportunities to undermine the impact and credibility of the opponent’s case themes. Effective
cross-examiners structure questions to avoid losing the momentum and command that are yielded when testimony is
peppered with the opponent’s objections. It is recommended that you keep in mind a list of the most common objections in
cross-examination in order to plan well-controlled testimony.
Common objections:

 No good-faith basis for question

 Argumentative
 Misquoting witness
 Assuming facts not in evidence
 Compound question
 Asked and answered
 Improper impeachment
 Beyond the scope of direct
 Hearsay
Outline of a good cross-examination.
Planning the questioning. Following are guidelines for planning three major types of cross-examinations, keeping in mind
that effective technique usually covers the territory with queries beginning with a statement and ending with a question
designed to elicit a simple yes or no answer.
On events:

 When?
 Where?
 How long?
 Who was there?
 Where are they today?
 Who else knows?
On conversations:

 How many?
 When?
 Where?
 How long did it last?
 Who was there?
 Where are they today?
 Substance?
 Recorded?
 Actions taken after conversation?
On documents:

 When prepared?
 Why prepared?
 Who prepared?
 Prior drafts?
 Where is the original?
 Any attachments?
 Anything missing?
Elements of cross-examination. Cross-examination seeks to invalidate the impact of the opponent’s direct. A good plan for
structuring the inquiry is to go for the questions to which the witness must agree with a string of “yes” responses, followed
by a series of questions the answers to which the witness does not know or must answer “No.” It can go something like
this:
“Yes” questions:

 Doctor, do you agree that the most likely cause of meconium staining is hypoxia?
 You agree that hypoxia can causebrain damage?
 You agree that an episode of hypoxia can affect the fetal heart activity as revealed on monitor strips?
 You agree that if a fetus shows this kind of distress, the OB should consider a C-section?
“No” questions:

 Now, you weren’t there?

 You didn’t see the incident?
 You don’t know how badly the car was damaged?
 You didn’t see the condition of the passengers when they were removed from the car?
After command has been established, it often is appropriate to attempt witness impeachment. Typical grounds include
bias, ability to observe, ability to recall, unfamiliarity with facts, and lack of qualifications.

On the other hand, these effective elements of cross-examination are instantly abandoned if the witness surrenders the
chance for an unexpected knockout punch. Handled well, it is a great opportunity for high drama: (1) Hold the moment
with stillness of movement and words, then (2) abruptly dismiss the witness. (Remember the impact in the movie A Time
to Kill, when the prosecutor’s voice, dripping with disgust, said “I have no further use for this witness, Your Honor.”)
Two steps to impeachment. Impeachment is a tough sell, even when the law is on the examiner’s side, if only because
the jury is not experienced in discerning discrete and subtle points of law. What may be obvious to professionals may be
lost on the jury unless it is framed in a way that warns the finders of fact that they are on the brink of hearing something
big.
Establishing the maxim. An open-ended question signals high drama to come when setting up a witness for impeachment.
This example, from testimony in a divorce case, reveals how the witness husband was allowed to dig his own verbal grave:
Q: Sir, fidelity in marriage is important, isn’t it?
A: Yes.
Q: Why?
A: [Any answer helps the examiner.]
In fact, if the witness responds with more than one reason, it might be useful to list answers on the blackboard or flipchart.
The key is to present a maxim or rule that is virtually universal in order to corner the witness into a first-step “Yes”
answer:

 It is important to be truthful with police officers.

 Tenants should be able to trust that their landlords have taken reasonable steps to ensure safety.
 Experts should be completely honest when they write their reports.
 Manufacturers should protect their customers from dangerous products.
 Experts should remain neutral when reviewing a case.
Confronting the witness. Once a witness has endorsed the maxim as universal, impeachment is available through
confrontation of the witness with facts of the case that imply violation of the universal rule. Vigilant examiners avoid asking
the witness directly if he violated the rule; the wiser approach is to confront the witness with the bare minimum facts that
reveal the violation, keeping in mind the dangers of questions that ask too much or that ask for conclusions. Careful
question construction restricts and exposes the witness at the same time. Following are bad and good examples of this
technique. They came from a divorce case.
Poor execution:

Q: And you lack fidelity, don’t you, sir?

A: No. I’ve always been faithful. She just never believed me.
Good execution:
Q: And your wife stated in her petition that you had an affair with your secretary last year, correct?
A: Yes.
Remembering the key to cross-examination—damage control through the elimination of wiggle room and recognizing when
to stop—will assist you in focusing your questions and staying on task. Unless the opponent’s witness is completely inept,
some ground is expected to be lost. The question of how much ground, however, depends on you.

Conclusion
Direct and cross-examination are where the jury becomes familiar with the evidence, with the credibility of witnesses, and
with your true belief in your case. Be prepared, but be fluid. Although direct and cross are more structured than opening
statement, they are still dynamic. Your ability to connect with the witness during direct, or discredit the witness during
cross, ultimately requires you to stay true to your own style and believe in yourself. If, during direct and cross, you score
half the goals you set out to score, then you will be a world champion.