Due to its importance, cross-examination is the cornerstone of every trial lawyer’s work. The leading text is Pozner and Dodd’s Cross-Examination Science and Techniques, which is the most thorough and effective cross-examination system developed. This article summarizes some of their key pointers.
The process of preparing for cross-examination involves determining a theory of the case, investigation and fact gathering, organising facts by topic (preparation charts), preparing the cross-examination (chapters of cross-examination) and execution of the cross-examination.
3 Rules of Cross-Examination
There are 3 rules of cross-examination:
- Leading questions only;
- One new fact per question; and
- Build towards a specific goal.
Leading questions keep the cross-examiner in control. One new fact per question keeps the witness on track as the cross-examiner builds the story brick by brick. Building towards a specific goal means that the story is being built with purpose: to support the theory of the case.
Organising the Facts
With the theory of the case in mind, a case is broken down into topics (issues). The topics can become very narrow depending on their importance to the theory of the case. For example, “hair colour on April 1, 2014” could be a topic if there is an identification issue.
Facts are then grouped by topic. For example, all relevant hair colour facts (statements from witnesses, photos, video, etc.) are grouped under the “hair colour on April 1, 2014” topic.
It is possible to first break a case down into events and then topics if a series of events is important and then into topics.
A sample preparation chart is below.
At the top left the word preparation is used to make it clear these are preparatory notes and not the chapters of cross-examination.
The topic is in the center of the page and is worded as narrowly as the topic needs to be. One page is used for each topic. The topic pages can be grouped together by event with events organised in chronological order.
There are three columns:
- Source is for the location of the information, be it documents, examination transcripts or client interviews. Using abbreviations for the source is helpful. For example MH-CR P34-L12 could mean Mick Hassell’s cross-examination at page 34, line 12. This makes it possible for the cross-examiner to check the source anytime during preparation or at trial.
- Facts are the facts that relate to the topic. Remember to include non-facts such as “I did not see…”
- Notes is for anything strategic that comes to mind as the material is reviewed.
Chapters of Cross-Examination
Each chapter is on a new page and has the following format:
The top left corner says cross-examination to distinguish it from preparation.
The chapter of cross-examination is in the center of the page and is worded to relate to the goal of the chapter. There will be one chapter per page.
There are three columns:
- Source is specifically where to find the information and come right off the preparation charts. This enables the cross-examiner to impeach the witness if they do not give a truthful answer;
- Leading questions contain one new fact per question working towards the goal of the chapter; and
- Tactics can be inserted in advance, for example exhibits to introduce. And tactics can be added on the fly during trial, for example notes and quotes from direct examination. If you are well prepared, it is unlikely that any other note taking is needed during direct examination.
The chapters of cross-examination are prepared using the preparation charts. Each chapter works towards a specific goal to support the theory of the case. Chapters are drafted from the goal backwards in four steps:
- Establish the factual goal;
- Review the preparation charts for facts related to that goal;
- Draft factual questions that lead to the goal; and
- If additional goals are identified in the process, separate them into additional chapters.
With one goal per chapter and one chapter per page, the cross-examination can be put into any sequence, depending on cross-examination strategy. They can be shuffled, even during trial.
Cross-Examination at Trial
By the time you rise to cross-examine at trial, you will do so know that you:
- Have a game plan (theory of the case);
- Thoroughly and efficiently reviewed all available information and conducted further investigation where necessary; and
- Have rigorously prepared for the execution of your cross-examination.
When you are ready for cross-examination, you will need to have:
- Your chapters of cross-examination;
- Any exhibits you plan to enter, together with an exhibit list (all of which may be managed by a support person);
- Your preparation charts to refer to if necessary; and
- The source materials in case you need to go back to them.
When you rise to conduct your cross-examination:
- All you need to take to the podium are your chapters of cross-examination and a pen;
- You can check off the chapters as you complete them; and
- You may be able to perform the cross-examination by only having to review the chapter titles because you will have prepared so thoroughly.
Thorough, systematic preparation gives the cross-examiner confidence and control. With all fundamentals taken care of, the cross-examiner can turn their mind to advanced cross-examination techniques that will elevate the cross-examination in terms of impact and persuasive value.
Ontario Civil Trial Manual
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