Cross Examination

Question 1

What is the significance of the phrase “argue your case through the witness?”

Answer 1

Argue your case THROUGH the witness: you’re not arguing with the witness. They believe what they’re saying is true.

Argue your case through the WITNESS: most witnesses are telling the truth as they see it. You can find areas where they can either agree with you or not contest your argument.

Argue YOUR CASE through the witness: your theory of the case exists via the opposing witness’ statements.

Question 2

What is the 7-1-3 Rule?

Answer 2

7 - words or fewer
1 - fact per question
3 - categories of cross examination

Question 3

What are two framing questions you should use to create chapters?

Answer 3

1. How do I want to argue my case through this witness?
2. How do I want the fact finder to feel about this witness?

Question 4

In what order should you deal with available facts?

Answer 4

In descending order of credibility:
1. Facts beyond change
2. Facts beyond disbelief
3. Latent facts
4. Omissions

Question 5

In what order do you construct categories of cross (3 categories plus one):

Answer 5

1. Train the puppy
2. Obtain concessions
3. Limit testimony
4. Impeach (if warranted)

Question 6

Explain training the puppy.

Answer 6

The goal is to build a rhythm and get the witness saying “yes” to everything. In each statement, you’re making your argument and the witness is agreeing. The witness is unnecessary.

Question 7

Explain obtaining concessions.

Answer 7

There is only one case - bring out helpful info that wasn’t elicited on direct from every witness. Say “we can agree” - it’s powerful. Don’t be vague or general. Use rules of the road.

Question 8

Explain limiting testimony.

Answer 8

Limit the length and substance of what the witness said on direct. Don’t let the witness ever not answer your question; ask it again. Since you don’t have a witness deposition, it’s good to place in the middle to avoid the primacy/recency spotlight.

Question 9

Explain why you save impeaching credibility for last.

Answer 9

After you’ve impeached a witness, they’ll fight you on everything else.

Question 10

What’s the main difference between the federal rules and the Texas rules re: scope?

Answer 10

Federal - can only address the subject matter of the direct examination and matters affecting witness credibility, but the court has discretion to allow additional inquiry.

Texas - can be crossed on any relevant matter, including credibility.

Question 11

What types of words should you avoid in cross, and why?

Answer 11

Adverbs and adjectives. It’s easy for the witness to fight you on those.