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

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 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.

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 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 . . . ?

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 • 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

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 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.

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