EFFECTIVE TRIAL ADVOCACY

MCLE 2003 Lecture Notes by: Rogelio Vinluan

PART 1. TABLE OF CONTENTS

Introduction…………………………………………………………………………………

The differences between the purposes and objectives of direct examination and cross-
examination…………………………………………...

A. DIRECT EXAMINATION…………………………………………………………….

1. Witness selection and preparation……………………………………………………

2. Presentation and delivery…………………………………………………………….

a. “Humanize” your witness………………………………………………………..

b. Testimony should be in story form………………………………………………
c. Keep it simple………………………………………………………………...….
d. Use short simple words…………………………………………………………..
e. Use sensory language…………………………………………………………...
f. Elicit visual descriptions………………………………………………………..
g. Avoid leading questions………………………………………………………...
h. Present the testimony of the witness in the most logical and effective manner..
i. Use “point of reference” technique……………………………………………..
j. Volunteer weaknesses…………………………………………………………..
k. Use exhibits to highlight and summarize facts…………………………………
l. Listen to the answers of the witness……………………………………………
m. Vary the pace or tempo of the examination……………………………………

3. Cross-Examination…………………………………………………………………

1 The Need for Preparation………………………………………………

2 The risks involved……………………………………………………...

3 Purpose of cross-examination………………………………….............

4 When to Cross-Examine………………………………………..............

5 Style of cross-examination…………………………………………..…

6 Three Imperatives of effective cross-examination…………................

a. Ask only leading questions………………………………………….

b. Each question must refer to only one new or additional fact……..

c. The questions must be directed towards a specific goal…………..

7 Other Cardinal Principles of cross-examination……………………..…

a. Start and end crisply………………………………………………...

b. Know the probable answer to your questions

Before you ask the questions………………………………………..

 c. Listen to the answer of the witness………………………………….

d. Don’t argue with the witness……………………………………......

e. Don’t ask one question too many……………………………………

f. Have you cross-examination establish

as few basic points as possible………………………………………

g. Don’t repeat the direct examination…………………………………

8 When to impeach and how to do it……………………………………...

9 Impeachment by Omission…………………………………………...…

10 Cross-examination of various types of witnesses……………………….

a. Cross-examination of an evasive witness…………………………..

Techniques should enable you to insist on an answer

While emphasizing a witness’ evasiveness:
1. Repeat the Questions……………………………………….

2. “I Didn’t Ask X, I Asked Y”……………………………….

3. Repeat and Move to Strike…………………………………

4. Ask Judge to Instruct a Witness to Answer…………..……

5. Avoid Arguing With A Witness……………………….…..

6. Don’t Settle for “May” and “Might”…………………..….

b. Cross-examination of a lying witness………………………….…

c. Cross-examination of an expert witness………………………….

d. Redirect Examination…………………………………………….

e. Re-cross examination………………………………………….…

f. Rebuttal and Surrebuttal Evidence……………………………….

g. Objections……………………………………………………..…

Summary of the common legal objections:

A. Objections To Form of Questions…………………….…

B. Objections to Substantive Evidence

(Impropriety of Subject Matter of Inquiry)………………

C. Objections to Manner of Questioning……………………

h. Offer of Proof……………………………………………………

B. CONCLUSION……………………………………………………………………
 PART II. EFFECTIVE TRIAL ADVOCACY

My assigned topic is “Trial Skills.” When we talk of trial skills, we automatically think of
direct examination and cross-examination, the two most important parts of a trial.

Hence, what I propose to discuss with you today is basically the art of effective direct
examination and cross-examination, including re-direct examination and re-cross examination. I
will also touch briefly on rebuttal evidence, objections and offer of proof.

At the outset, I cannot over-emphasize the fact that the key to effective trial advocacy is
preparation, preparation and more preparation. It’s 90 per cent perspiration, 10 per cent
inspiration. It’s preparing sooner, not later.

While direct examination and cross-examination may have differing purposes or

objectives, both require for success thorough preparation, mastery of technique, and an artful
execution of the advocate’s game plan.

Also, whether it be direct examination or cross-examination, the facts will affect the
extent and quality of the examination. No matter how brilliant the lawyer is, he has to live with
the facts of the case. If the facts are not on his side, his brilliance may avail him nothing and, as
the saying goes, if he cannot pound on the facts or the law, he may have to resort to pounding on
the table.

It may be worthwhile at this point, for a better understanding of what we will discuss
later, to note the differences between the purposes and objectives of direct examination and cross-
examination.

As a general rule, on direct examination, the lawyer calling the witness will try to provide
a clear exposition of the relevant facts. The objective is to have the witness testify in such a way
as to provide the judge a complete picture and enable him to understand and remember the
witness’ testimony. On cross-examination, on the other hand, the opposing lawyer will try to
show to the court that the witness’ testimony is unclear, inaccurate or contradictory, or that the
witness is not a credible person.

To be more specific direct examination and cross-examination differ as follows:

(a) On direct examination, the lawyer uses the witness to advance and support his
theory of the case, while on cross-examination, the lawyer first tests the
possibility of confirming his theory of the case by eliciting from the witness
admissions in support of the relevant facts and he may also attempt to destroy
and discredit the witness’ testimony by emphasizing contradictory facts and
attacking the credibility of the witness.

(b) On the direct examination, the lawyer tries to focus the testimony on facts that
will enhance his theory of the case while on cross-examination; the lawyer tries
to surround the testimony of the witness with clouds of doubt and tests the
possibility of eliciting facts corroborating his theory of the case. Essentially, the
cross-examiner is looking for inconsistencies between the testimony and the
opposing lawyer’s theory of the case.

(c) On direct examination, the lawyer will ask the witness questions concerning his
knowledge of the facts; any question not prepared in advance could confuse and
entangle the witness at this stage. On the other hand, on cross-examination, the
lawyer’s purpose is to move the witness from the security of prepared and
rehearsed questions to a different field, generally unexpected by the witness.

(d) On the direct examination, the lawyer’s purpose is to connect the testimony to
credible and verifiable facts, while on cross-examination, the lawyer’s purpose is
to point out and prove improbabilities and inaccuracies in the direct testimony.
 (e) On direct examination, the lawyer’s purpose is to ask questions drawing facts in
chronological order since it is easier for the witness to remember events in
chronological sequence, while on cross-examination, the lawyer’s purpose is to
break the chronology of events by jumping from one subject to another and
thereby distract the witness from this or her line of thought.

(f) On direct examination, the lawyer must examine the witness since the testimony
is an essential part of the evidence, while on cross-examination the lawyer may
examine the witness if the questioning could contribute to his case.

An appreciation of the difference in the purpose or objectives of direct examination and

cross-examination should help facilitate an understanding of what is an effective
examination and how best to do it. I hope that my discussion will help both the new
practitioners and the seasoned ones.

C. DIRECT EXAMINATION

The aims of direct examination are two-fold: (a) to present evidence legally sufficient to
prove each claim or defense, and (b) to convince the court of the truthfulness and accuracy of
all the evidence supporting the claim or defense.

Although effective direct examination is usually less spectacular, more cases are won by
evidence on direct than by that on cross-examinations. According to Justice Ricardo
Francisco, direct examination might well be described as the unsung hero of successful trial.”
To win your case, you must prove it rather than disprove your opponent’s case. The direct
examination is the foundation of the case. The only time when a lawyer can place somewhat
greater reliance on cross-examination is in planning a defense, a case in which he has to
convince the court that the vital elements of the plaintiff’s case are unsupported by evidence
or that some vital element of fact is entirely omitted from the plaintiff’s proof.

An “effective” direct examination is one that represents not only legally sufficient
evidence but also convinces the court about the truthfulness and accuracy of the witness’
testimony. Although presenting legally sufficient evidence is an absolute pre-requisite of
success in a trial, the great majority of cases are won or lost upon the persuasion of the court.

1. Witness selection and preparation

The first step to ensuring a good direct examination is the selection of witnesses who
make the most effective presentation or corroborate critical information. You should consider
which witnesses will be most persuasive.

Before a witness is presented, you should study and evaluate the witness’ strengths and
weaknesses in order to make the witness as effective as possible. All witnesses cannot be handled
the same way. Many types would have to be specially coached, for example, an illiterate witness,
the poor talker, or one from whom you have to literally draw out the information.

The need to interview the witnesses and to go over the case thoroughly with them cannot
be overemphasized. By doing so, you not only obtain knowledge of the facts but you learn what
each will testify to, the manner in which they will testify, and the kind of witnesses they will
make.

Going over all details with the witnesses beforehand will help them remember the facts
better in court; they will also have more self-confidence, will know what is required of them, and
will make better and more intelligent witnesses in every way.

Before a witness is called to the stand, he must be given to the proper guidelines or
instructions for testifying, which should include:
 (a) The need to maintain eye contact with the judge;

(b) The need to maintain eye contact with the examining counsel;

(c) The dangers of becoming angry or losing control;

(d) The importance of telling the truth and not exaggeration;

(e) The importance of making his answers concise, accurate, complete and
responsive;

(f) The benefits of appearing honest and sincere;

(g) The necessity of not answering a question that is not understood;

(h) The avoidance of speculation or inappropriate opinions when answering

question;

(i) To decline to answer a question if the witness does not know;

(j) The problems created by being non-responsive or volunteering information; and

(k) How to properly address the judge and the examining counsel.

The preparation of the witness requires that you must sit down with the witnesses and go
over carefully with him what he will testify in court. In other words, you must prepare the witness
to testify by reviewing with him the questions you are going to ask and his proposed answers.
There should be no “surprise questions” during the trial. As long as you tell the witness to stick to
the truth, there is nothing unethical about coaching or rehearsing the witness. As stated by one
author: “No serious ethical question is raised by the lawyer’s organizing the testimony into a
logical, comprehensible sequence; no conceivable purpose could be served by having an
inarticulate, disorganized witness, left to his own devices, stumble through his testimony.”

A leading textbook on trial technique has this to say about witness preparation:

“Witness preparation for direct examination is not complete until you have run through
your actual planned questions and seen now the witness actually answers them. The witness’
answers may be much different from what your earlier “discussion” had led you to believe.
Hence, practice the actual direct examination with the witness so that the witness feels
comfortable with your questions and you feel comfortable with the way the witness expresses
confidence and certainty. Remind the witness that it is perfectly proper to prepare the witness for
testifying in court….”

A caveat is in order. While attention must be paid to adequate preparation of the

testimony, care must be taken not to rehearse the examination so extensively as to cause the
witness to deliver an obviously memorized set piece. If the testimony appears canned or seems to
be the product of the script, much of the witness’s credibility will be lost.

A witness will be better one he understands the theory of the case and the purpose of his
testimony. This means that you must take pains to explain to the witness your theory of the case
and how his testimony fits in the whole scheme of things.

2. Presentation and delivery

In conducting the direct examination, you must assume that the judge knows nothing
about the case. Your direct examination must therefore start at the beginning and tell everything.
 It is not, however, a simple matter of getting the story of the facts out. The direct
examination should tend to portray a clear and dramatic picture of the main events. As a trial
lawyer, you should view a trial, particularly a direct examination, as a creative art, one which
allows you to tell a story to the court in a way that is most advantageous to your client. You must
consider the courtroom as a theater and the trial like a play or a movie: the witnesses are the
characters. The line must be persuasive, interesting, compelling and clear. Like a director, you
must decide how to portray a certain event or scene to achieve the desired result. As one author
puts it: “Unimportant matters are avoided or glossed over. Important ones are stressed, details are
zoomed in on, and action is slowed down. Critical matters can be shown in stop-action
sequences.”

To make your direct examination a highly effective one, the following suggestions should
prove helpful”

(a) “Humanize” your witness. – Your initial questioning should include

background questions to personalize the witness. The credibility of the witness is
always in issue. A judge is more likely to believe the witness if he views the
witness as a likeable, decent and nice person.

(b) Testimony should be in story form. – An effective direct examination elicits

evidence in story form. Stories generally describe events in chronological order,
provide a descriptive background for those events, and explain why the events
took place. Stories are effective on direct examination because they are a familiar
form of communication, they provide clarity and give meaning and credibility to
isolated events, and they stimulate witness recall. As a result, stories tend to
convey the important impression that a witness is describing events that actually
took place.

(c) Keep it simple. – Since attention span drops significantly after 15 to 20 minutes,
make your examination short and focused; make the examination what the
implies – “direct,” i.e., straightforward, concise and to the point. Unnecessary
information and details should be omitted. Determine in advance what the critical
part of the witness’ testimony is, get to it quickly, develop it sufficiently, then
stop. Brevity is the better part of wisdom.

(d) Use short simple words. – To keep your direct examination simple requires
choosing simple words and phrases for your questions and training your
witnesses to use simple words and phrases in answering your questions. Short,
simple and easily understood questions can be answered by short, simple
statements. Such a direct examination makes the witness feel at his ease and
helps him to tell all he knows in the best way he is capable of doing. This manner
of examination also brings out the facts in the most effective way.

(e) Use sensory language. – Frame your question in simple form, using simple and
sensory language that will help the judge visualize what the witness is saying.
Sensory words will give the judge a better, more vivid picture of what really
happened.

(f) Elicit visual descriptions. – Your direct examination should elicit visual and
other sensory images. The witness’ testimony should paint a picture that the
judge can actually visualize. However, avoid excessive detail which may just
clutter up your direct examination.

(g) Avoid leading questions. – While the prohibition against the use of leading
questions in direct examination is a rule of evidence, it is also a rule of
persuasion. By suggesting the answer to your question you diminish the impact
of having the witness volunteer the facts himself; it prevents the witness from
 appearing credible. Also, because a leading question will often draw an objection
from opposing counsel, the use of leading questions will interrupt the flow in the
testimony of the witness and slow it down.

(h) Present the testimony of the witness in the most logical and effective
manner. – You must organize the key elements of the direct examination in a
logical order. Usually, but not always, this will result in a chronological
presentation of the testimony. This is not, however, an invariable rule. You may
decide to “front load” an event that occurs late in a witness’ chronology which is
of particular importance to your theory of the case. Presenting the most dramatic
or important testimony early in the direct examination when the judge is most
alert can sometimes be the better approach. You must exercise your best
judgment and decide, with each witness, the order that will most effectively
present his testimony.

(i) Use “point of reference” technique. – To use the “point of reference”

technique, incorporate evidence from a previous answer into a subsequent
question. The repetition provides emphasis and allows you to clarify stories.
However, use the technique only sparingly. You don’t want to give the
impression that you are unfairly gilding the lily, or invite an objection that
“counsel is testifying.”

An example of this technique is the following:

Q. What happened next?
A. The other guy ran behind a truck. He reappeared a few moments later with
brass knuckles on his right hand.
Q. After he reappeared with the brass knuckles, what happened?

You may also use a point of reference to make the chronology clear
when a witness omits mention of an event:

Q. What happened then?

A. The wolf huffed and puffed and blew down the house of straw.
Q. Then what happened?
A. The wolf began to huff and puff at a house made of bricks.
Q. After the wolf blew down the house made of straw, but before the wolf began
huffing and puffing at the brick house, did anything else happen?

(j) Volunteer weaknesses. – You should carefully consider whether you should
offer harmful evidence on direct examination to avoid the more damaging effect
of its being revealed dramatically on cross-examination. When you elicit harmful
evidence on direct, you can provide a witness an immediate chance to offer an
explanation that reduces its impart. By contrast, when harmful evidence comes
out on cross, the explanation may not come out until re-direct examination. That
may be too late for you to rehabilitate the witness. If the harmful evidence is
directly related to the issues in the case and is a matter that in all probability
your opponent will inquire about on cross-examination, it is preferable to
produce it on direct examination. It can be offered at a time and manner in the
course of the examination that tends to minimize it rather than dramatizing it. It
is usually best to buy it in the middle of the direct examination and make part of
the story.

(k) Use exhibits to highlight and summarize facts. – Exhibits should be used
during the direct examination to highlight the central facts of your case and
explain important details to the court. The preferable time to use exhibits is after
 the witness has substantially completed his oral testimony. In this way, the
exhibits will not interrupt or detract from the oral testimony.

(l) Listen to the answers of the witness. – You should appear interested in the
witness’ answer, always maintaining eye contact with him. Appearing interested
carries over and infects the witness. IT eliminates any suggestion that the direct
examination has been choreographed and rehearsed. It also helps you avoid
mistakes and makes you alert to unexpected answers of the witness.

(m) Vary the pace or tempo of the examination. – The danger of the trial’s
degeneration into stultifying monotony is ever-present. To avoid monotony, you
have to vary the pace, tempo or rhythm of your examination. As suggested by
one textbook:

“Like music, a feeling can be developed through rhythm, tempo, and

modulation, short or long questions, fast or slow questions, pauses
between questions, or raised or lowered voices. A sense of kinetic energy
through the tone of the questions, the pace, and the number asked will set
and continue a mood for action sequences. The speed of words may also
indicate intensity. Generally, effective direct examinations move quickly
through general information and more slowly through the specifics of
critical action.

3. Cross Examination

According to Wigmore, cross-examination is “the greatest legal engine for the discovery
of truth ever invented” (Actually, he never cross-examined a witness in court in his life).
Effective cross-examination in a broad sense means one that successfully accomplishes the goals
of the cross-examiner or one the net effect of which is to further his theory of the case.

In a more concrete sense, a good or effective cross-examination is one that highlights the
facts that are favorable, diminishes the credibility of the facts to be drawn from those that are
unfavorable, and introduces facts favorable to the theory of the case.

The object of cross-examination must be to score as many useful points as possible and,
equally important, not to allow the witness to score any points against the cross-examiner’s case.
In other words, in scoring points, the cross-examiners must not become bloodied in the process.

Even a cross-examination which scores only a relatively few points but permits no points
to be scored against the cross-examiner’s case may be considered a good or effective cross-
examination.

1. The Need for Preparation

The decision to cross-examine cannot be intelligently made and an effective cross-

examination cannot successfully be carried out unless the cross-examiner has prepared the
cross-examination in advance and has a realistic understanding of what he can expect to
achieve during the cross-examination of any given witness. The key, it has been said a
thousand times before, is thorough preparation before trial.

Preparation involves a complete mastery of the facts of the case. This can only come
from interviews of all the witnesses, verification of their stories (including the client’s), use
of all the modes of discovery, a study of all the relevant records and documents, consultation
with expert, investigation of the background of each witness, an analysis of the pleadings, and
all the preliminary work needed to have a thorough knowledge of all the facts of the case. As
stated by Louis Nizer, “Preparation is the be-all and the end-all of the trial lawyer.”
 Based on his mastery of the facts and investigation of the witnesses of the opposing
side, the cross-examiner must prepare a strategic plan for the cross-examination of each
witness. Cross-examination must be planned primarily around the facts of the case, the
background and personality of the witness, the legal questions involved, and counsel’s theory
of the case. He must study and articulate in advance how the cross-examination of each
witness will further his theory of the case through the establishment of identifiable factual
and thematic points; these points will serve as the base around which the cross-examination
will be structured. Simply stated, you must know exactly what facts you want to elicit during
the cross-examination of each witness.

It is especially important in preparing the plan of cross-examination of a witness that

you note all prior inconsistent statements made by the witness as well as those that are
inconsistent with other witnesses. All fact showing bias or prejudice on the part of the witness
must likewise be noted. In sum, all points to be covered on cross-examination must be
prepared in a coherent way to facilitate the court’s understanding of the thrust of the cross-
examination.

2. The risks involved

A famous trial lawyer in the U.S., Edwards Bennet Williams, has warned: “You must
think of [the witness to be cross-examined] as a man with a knife in his hand who is out to stab
you.”

Cross-examination is, therefore, a risky undertaking. While some lawsuits are won
through brilliant cross-examination, more are lost through inept cross-examination. It is a two-
edged sword that may cut both ways. In the words of Shakespeare you may be hoist with your
own petard; cross-examination may explode in your own face.

You must understand that cross-examination is a “true art” that can only be mastered
through study, training and experience. You cannot just read a book on trial and then step out and
try cases.

To undertake an effective cross-examination, you must have a clear understanding of

your objectives and how it will further the theory of your case.

3. Purpose of cross-examination

(a) Purpose of cross-examination

Cross-examination has two basic purposes:

i. Eliciting favorable testimony. – This involves getting the witness to

agree with those facts that support your case in chief and are
consistent with your theory of the case.

ii. Conducting a destructive cross-examination. – This involves asking

the kinds of questions that will discredit the witness or his testimony
so that the court will minimize or even disregard them. To assail the
credibility of the witness an attorney tries to show flaws in the
witness, as by showing his conviction for a crime, or that he is biased
by reason of a close relationship to a principal party, or that he has
made prior inconsistent statements. Attacking the testimony of the
witness, an attorney tries to show flaws in the testimony of the
witness, as by showing the lack of opportunity for observation, or
exposing errors in the witness’ recollection.
 Contrary to popular perception, the more important objective of cross-examination is to
elicit admissions favorable to the theory of the cross-examiner or which will corroborate aspects
of the cross-examiner’s own cause.

You should always consider eliciting favorable testimony from the witness before you
attempt a destructive cross-examination.

At the end of the direct examination, most witnesses will have testified in a plausible
fashion and their credibility will be high. This is the time to extract favorable admissions and
information from the witness, since the witness’s credibility will enhance the impact of the
admissions. Such admissions will have less impact, and be less likely to occur, if you have
previously attacked the witness.

Thus, you should not always undertake a destructive cross-examination. Remember that a
destructive cross-examination is one that attempts to discredit a witness or his testimony so that
the court will minimize or even disregard what the witness has stated. If you have been successful
in obtaining significant admissions, you may well decide to omit any destructive cross-
examination at all. You cannot have your cake and eat it too. It would not make sense to argue to
the court a witness’s favorable testimony should be believed while the part of the testimony you
attempted to discredit should be disbelieved. Accordingly, where the witness’ admissions have
been helpful, thereafter conducting a destructive cross-examination will only undermine the
admissions.

4. When to Cross-Examine

The decision to cross-examine cannot be intelligently made unless you have thoroughly
prepared your case and you have a realistic idea as to whether you can achieve any of the
objectives of cross-examination. As stated by one author: “The decision whether or not to cross-
examine a particular witness, and to what extent and with what aims and methods, calls for
appraising the advantages and disadvantages and accepting a calculated risk.”

After a witness has finished his direct testimony, ask yourself the following questions
before automatically rising to begin your-examination:

(a) Has the witness hurt your case? If the witness has not hurt you, leave him alone.

(b) Is the witness important? Where the witness is important to the other side or has
a significant role in the trial, you should undertake some type of cross-
examination. If the witness is credible and you don’t have any ammunition, you
may have to conduct a cursory cross-examination on a peripheral point.

(c) Was the testimony of the witness credible? If the witness did not make a
favorable impression upon the court and if it is evident that both the witness and
his testimony are not believable, the better policy is to leave well enough alone.
In this situation, as one author puts it, “the damage has been done before you can
do anything.”

(d) Did the witness leave something out on direct examination that might get in if
there is cross-examination? It may happen that the witness (or his lawyer) has
forgotten an important part of his testimony. In such, a cross-examination may
give the witness (or his lawyer) an opportunity to repair these mistakes on re-
direct. It may well be that the opposing lawyer is “sandbagging,” i.e.,
intentionally omitting a damaging part of his testimony on direct, hoping that you
will pursue it on cross. This is a trap for the inexperienced lawyer. Damaging
testimony is twice as damaging if elicited during the cross-examination.
 (e) What are your realistic expectations on cross? If you cannot realistically score
points during your cross-examination because you don’t have any ammunition,
you may consider foregoing cross-examination. For example, if you know that
the testimony given on direct examination is beyond contradiction and no
possible avenue for impeachment exists, it is unwise to cross-examine. If you
cross-examine and accomplish nothing, you have probably boosted your
adversary case even if you do not elicit additional harmful evidence. Unlike with
love, it can be worse to have crossed and lost than not to have crossed at all.

(f) What risks do you need to take? If you have a strong and solid case, you should
keep your risks to a minimum; do not cross-examine unless you really have to.
On the other hand, if your case is a probable loser, you can throw caution to the
winds and conduct a risky cross, with the hope that you might somewhat get
lucky and turn the case around.

To repeat, the better part of discretion may be to say “no cross-examination” in such a
way as to leave the impression that you attach little importance to the testimony of the witness.
This course of action is indicated where the facts in the case, and the testimony rendered, leave
you with no targets to aim at, no points to weaken or color.

5. Style of cross-examination

You should be yourself. Use the style that is natural to you, that you feel comfortable
with. Do not try to copy someone else’s style. The style that is natural for you will invariably be
the one that is the most effective as well.

Ask your questions in a voice and manner that projects confidence. If you appear
confident and in control, you will be more effective in eliciting from the witness the points you
want to make.

You should also be a good actor. Every cross-examiner, no matter how experienced,
careful, and talented, will get bad answers to questions. When this happens, a good poker face is
invaluable. Don’t react. Don’t react to a bad answer, no matter how damaging. Simple go on as if
nothing happened.

Handle the witness on cross-examination in a kindly, friendly fashion. A fair and

courteous manner is more effective than brow-beating and ridiculing the witness. Make the
witness feel that you are merely trying to elicit further information from his end to make clearer
the testimony he has already given. Lull the witness into a false sense of security so that his
answers will be spontaneous and he will not withhold information which he would otherwise
disclose.

The only exception to the rule that your demeanor toward the witness should be an
entirely friendly one is when you are cross-examining a perjurer. As advised by an authority on
the subject: “Be mild with the mild, shrewd with the crafty, confiding with the honest, merciful to
the young, the frail, or the fearful, rough to the ruffian and a thunderbolt to the liar.

6. Three Imperatives of effective cross-examination.

An effective cross-examination can only be done through control of the witness. And
control can be effected only by observance of three “imperatives” of good cross-examination, to
wit:
(a) Ask only leading questions.

(b) Each question must refer to only one new or additional fact.

(c) The questions must be directed towards a specific goal.

A cross-examiner who keeps in mind these imperatives will not only score points against the
witness but, equally important, will avoid damage to his case. The objective in every case is to
score as many points as possible while simultaneously offering no opportunities for the witness to
score points.

(a) Ask only leading questions.

A cross-examiner must exercise the most powerful tool in his arsenal: the right to conduct
the examination through leading questions.

A skillful cross examiner never asks questions that begin with the following: “who”,
“what”, “when”, “where”, “how”, “why”, and “please explain”. These words invite
“uncontrolled, unpredictable and perhaps unending answers”; these words invite the witness to
seize the action” and allow the witness to insert a mishmash of facts, opinions and stories
designed to focus [the court] on the issues the witness thinks most important”.

This is an oft-violated rule. Questions like “what’s the next thing you did?” and
“Describe what the intersection looks like” have no place on cross, particularly where important
testimony is involved. You should keep in mind that whenever a witness is given the chance to
give a long, self-serving answer, he will.

Your leading questions must not only suggest the answer, but must “declare” the answer.
For example, instead of saying “Do you like to drink?, which in itself may already be considered
leading, your question should be phrased like a statement “You like to drink”, asked in such a
way that by your intonation and attitude, you make it obvious to the witness what answer you are
expecting. This question tells the witness what answer you require; it declares the answer.

In other words, your question should actually be a declaration of fact coupled with a
demand for affirmance by the witness:

Q. You were home on the night of August 16th, were you not?
A. You had three drinks before you left the restaurant, didn’t
you?
Each one of the questions is actually a statement, ending in a demand for affirmance. There
should be no uncertainty in your tone of voice; you are seeking confirmation for what you already
know. You leave no room for the witness to do anything but affirm or deny.

To repeat, during cross-examination, your job is to make assertions and statements of

facts. The witness should simply be asked to agree with each of your statements. By phrasing
your questions narrowly – questions that practically declare the answer – you should be able to
get “yes” or “no” answers to each question.

The leading questions serve an additional purpose. It enables you to characterize certain
facts more accurately or more dramatically than the witness might describe them in his words.
For example, without the use leading question, a witness might describe an event as follows:

“Q. What did you do next?”

“A. The police officer subdued the defendant.”
As the cross-examiner, by using a leading question, you might cast a different light on the affray:
“Q. The policemen smashed Mr. Arnold across the mouth with his night stick, didn’t
he?
“A. Yes.”

It is not likely that the witness would have volunteered the more graphic description,
preferring instead to recount the events in relatively inoffensive terms. The leading question,
however, forces him to reveal the details.

Moreover, by the use of the leading question, the cross-examiner can use his own words
to place the emphasis on the selected words. For example, an open ended question results in the
following:
 Q. Did you put that in your report?
A. No, I didn’t.”

The leading question, on the other hand, results in the same words, but with a different
emphasis”

Q. Nowhere in your report did you ever mention that?

A. No, I didn’t.
In the leading question, you control word selection, tone of voice and emphasis.

(b) Each question must refer to only one new or additional fact

During cross-examination, you must ask only one new specific fact in each question. In
other words, limit leading questions to one assertion. One-item questions tend to increase a fact-
finder’s comprehension, add persuasiveness and discourage lengthy responses and explanations.
To illustrate this, consider the following example given by one author in cross-examination:

(1.) See spot?

(2.) See spot run?

(3.) See spot run home?

The initial question discusses one fact. Each succeeding question contains one additional
or new fact to be added to the body of facts established by previous questions. By this method,
the scope of the fact at this issue is sharply controlled. As a result of the tight control over the
scope of the question, the permissible scope of the witness's answer is tightly controlled.

For a more interesting illustration, the same author gives the following example: Suppose
you asked the witness the following question: “Q. You saw the blue car come around the corner,
and sped through the red light? A. No.” This compound question contains five facts to which the
answer “No” might apply. Does the “No” refer to the color of the car, the speed of the car, or the
color of the light? Did the witness see anything at all? To obviate all these ambiguities, your
questions must ask one new fact at a time:

Q. You did see a car?

A. Yes
Q. It was blue?
A. Yes.
Q. The blue car came around the corner?
A. Yes.
Q. It drove through the red light?
A. True.
Q. As it drove through the red light, it was speeding?
A. Yes.

The following is another illustration:

Q. You went into the house?

A. Yes
Q. You picked up the phone
A. Yes.
Q. You dialed the police
A. Yes.
Q. You told them about the two men?
A. Yes

As you can see, each question contains a single indisputable fact.

 The technique is to ask short, plain precise questions, referring to only one specific fact in
each question. Your objective is to establish the facts bit by bit, point by point. Cross-
examination is in part the act of slowly making mountains out of molehills. Don’t make your big
point in one question. Lead up to each point with a series of short, precise questions, adding only
one new fact per question.

If you confront the witness with a conclusionary question that seeks to get him to recant
what he has testified on direct, his natural reaction would be to deny it. Don’t ask the witness, for
example, “You did not really see the pedestrian hit by the car, did you?” The witness will always
give an unfavorable answer. The technique is to ask him a series of short interrelated questions –
adding only one new fact per question.

To show how it should be done, the following is an example taken from a leading book in
trial techniques:

Q. You’re familiar with the intersection of North and Clark?

A. Yes
Q. In fact you’ve driven through that intersection over the past five years,
haven’t you?
A. Yes.
Q. You usually go through the intersection on your way to and from work?
A. Yes.
Q. So over the past five years, you’ve driven through the intersection
over a thousand times?
A. Probably.
Q. You’ve never saw a pedestrian hit by a car there before, did you?
A. No.
Q. On December 13, 1995, the weather was clear and dry?
A. Yes.
Q. The traffic was pretty much the way it is at that time of day, wasn’t it?
A. Yes, I’d say so.
Q. Nothing was going on that made you pay more than your usual attention to the
road?
A. No.
Q. In fact, just before the accident you were thinking about what you were going to
do at work that morning, weren’t you?
A. I might have been.
Q. So the first unusual thing that you noticed that morning was the sound of the
crash, wasn’t it?
A. Yes.
Q. And that when you saw that someone had been hit by a car, wasn’t it?
A. Yes.

Note that by a series of interrelated, progressive questions the cross-examiner has

demonstrated that the witness was not expecting the crash and really did not notice anything until
after the hearing of the crash. He has made his point by indirection. Please note that there was no
need to ask the question: “So you didn’t really see the pedestrian get hit by the car, did you?”

Another example: In the assault case, an eyewitness was asked by the council for the
accused who wanted to prove self-defense the following question: “Q. You saw the six-foot,
five-inch 225-pound guy with the bloody fists beat down on the five-foot, 155-pound boy with
the bloody face?” Even if the witness answered “Yes”, the cross-examiner lost the opportunity to
create a truly memorable picture of self-defense. Had the individual facts been put to the witness
a single fact a time – bit by bit, point by point, - the cross-examiner could have graphically
portrayed the picture of a much bigger man beating mercilessly a much smaller boy:

Q: You saw the fight?

A: Yes.
Q: John, the bigger guy, was fighting?
A: Yes.
Q: John was six-feet, five-inches tall?
 A: Yes.
Q: John is a big man?
A: Yes.
Q: Dave is only five-feet, seven-inches?
A: Yes
Q: Dave is a much smaller boy?
A: Yes.
Q: John weighed 225-pounds?
A: Yes.
Q: Dave is 155-pounds?
A: About that.
Q: John was a much bigger person
A: Yes
Q: And then John was hitting Dave?
A: Yes.
Q: He was hitting Dave with his fists?
A: Yes.
Q: He was hitting Dave in his face?
A: Yes.
Q: John was hitting Dave, and his fists were bloody
A: Yes.
Q: And you watched, you saw the blood on Dave’s face?
A: Yes.
Q: You saw John beating down on Dave, in the face, with his fists?
A: Yes.

The questions must be directed toward a specific goal.

All questions on cross-examination should be directed toward an objective. Each of your

questions should yield an answer which is part of a sequence. At the end of that sequence lies
your objective. Direct your questions toward that objective. Nothing can be futile or more
damaging than cross-examination that proceeds aimlessly with no specific objective.

The cross-examiner without a definite objective in mind is like a hunter lost in the woods
without a compass; he may get somewhere eventually but the chances are that the experience will
be unpleasant.

Each specific goal or objective of your sequence of questions must be related to, focused
on, and moving in the direction of your theory of the case.

7. Other Cardinal Principles of cross-examination

In addition to the three “imperatives” of good cross-examination already discussed, there

are other cardinal principles of cross-examination that have withstood the best of time. While
these principles can be ignored or violated in certain exceptional situations, following them is
usually the safest course of action.

(a) Start and end crisply. Open with a flourish and end with a bang. Start with a
question that grab’s a court’s attention. The same rule applies to your last
question: make it an important point, make it interesting, and make it crisp.
Always end on a high note and never with “your tail between your legs”. A
powerful and effective cross-examination should always end with impact. This
that you have to save your strongest points for the examination’s beginning and
end, for what happens at these moments is best remembered by the court. The
last questions must be such that they will require the witness to admit facts
favorable to your side of the case. When you say “That is all”, you should do it in
a triumphant tone of voice.
 (b) Know the probable answer to your questions before you ask the questions . –
As otherwise stated, ask only questions which you already know the answers.
You should always play it safe; cross-examination is not a discovery deposition.
The sole purpose of cross-examination is to elicit favorable facts or minimize the
impact of the direct testimony. Consequently, never ask the question unless you
know what the answer will be, and that it cannot hurt you. A violation of this
principle means gambling with the results.

(c) Listen to the answer of the witness . You should watch the witness as he listens
and answers, gauge the witness’ reaction to your question and the tone of his
answer, and intelligently formulate follow-up questions. Many lawyers do not
follow this obvious rule; they bury their faces on their notes, thinking about the
next questions while the witness is answering the right one.

(d) Don’t argue with the witness. Even if the answers of the witness are not to your
liking, resist the temptation to argue with the witness. Arguing with the witness is
legally improper and unprofessional. And you may end up being the loser.

(e) Don’t ask one question too many. When you have scored your point, stop; once
you strike oil, stop digging. You have made your point; be content to leave it
alone. Pass on to another subject. Do not continue to press the witness on that
particular point. If you do, he may correct or modify his testimony, and you will
lose the advantage you gained.

(f) Have you cross-examination establish as few basic points as possible . Do not
try to challenge everything the witness says; this will detract from the force of
your important points. Attempting too much on cross-examination will invariably
create two problems: the impact of your strongest point will be diluted and the
less significant points will be forgotten entirely by the judge at the end of the
trial. So stick with the strongest ammunition and avoid the peripheral material.

(g) Don’t repeat the direct examination. This may be the most commonly violated
maxim of good cross-examination. Do not ask the witness to “tell it again” on the
groundless hope that the witness’ testimony will fall apart on the second telling.
This approach almost invariably falls. It only serves to emphasize the witness
story in the mind of the judge and convinces him that the witness is telling the
truth.

8. When to impeach and how to do it.

You should resist the impulse to impeach every witness your adversary calls. You must
first consider whether the net effect of all the testimony of the witness is favorable or unfavorable
to your client. As I have already indicated, if you are able to elicit significant admissions on
cross-examination, you may be better off not conducting any discrediting cross-examination at
all.
Another factor to be considered before you attempt impeachment is the soundness of
your basis for impeachment – whether it will be successful. In the trial of lawsuits, unsuccessful
attempts are often worse than mere failures. The effort to impeach is itself a charge against the
witness. When impeachment is unsuccessful, the position of the witness in the eyes of the court
will probably be improved, both because of his ability to withstand your effort to impeach him
and because of a natural inclination to sympathize with one against whom false charges are made.
 In the event, however, that you have strong impeaching material in the form of prior
inconsistent statements, an effective cross-examination should follow certain tried-and-tested
techniques.

(a) The first step must establish the current version of the testimony to be
impeached. In other words, you must pin down the in-court testimony. By asking
the witness to repeat the testimony you plan to impeach, you emphasize the
inconsistency and prevent the witness from claiming that “I mis-spoke on direct”.
This is to remind the court of the current version stated by the witness on his
direct testimony. While establishing the current version to be impeached, you
must signal to the court that you are bringing up the subject merely to verify the
direct testimony but you are instead raising the testimony as an issue to be
disputed. Your question must have a “set up” phrase that signals to the court that
“this is a different story”.

Example:

“Q. Let me see if I understand this: now you are telling this court that you saw the
accused stab the complainant?”

“Q. What you are saying as today’s truth is that you saw the accused stab the
complainant?”

(b). The second step is to tie the witness to the current version of the fact to be impeached.
This is known as “setting the hook”. You should irretrievably bind the witness to the
direct testimony on a series of leading questions designed to show that the witness had an
excellent opportunity to make the observation to which the witness is now testifying, or
that the witness has now question concerning the accuracy of his direct testimony on this
point.
(c) The next step is to expose the inconsistent statement by laying the proper foundation as
required by Section 13, Rule 132 of the Rules of Court. The inconsistent statement must
be “related to him [the witness], with the circumstances of the times and places and the
persons present, and he must be asked whether he made such statements, and if so,
allowed to explain them.” If the statements be in writing, “they must be shown to the
witness before any question is put to him concerning them.”

The laying of the foundation must not be done mechanically. The pace,
phrasing and tone of the foundational questions must provide information to the court
about the importance of the upcoming impeachment and the attitude of the cross-
examiner. The cross-examiner should always finish with what was said: finish with the
inconsistency. Do not put the inconsistency before the orienting portions of the
foundation of the impeachment.

The cross-examiner, in laying the foundation, must also demonstrate to the

court that the former inconsistent statement was made under circumstances where the
witness had the desire and opportunity to be accurate. In other words, you must enhance
the credibility of the prior statement, especially if the prior statement is admissible as
substantive evidence that advances your theory of the case.

The following example demonstrates how to impeach a witness with a prior

inconsistent statement contained in a deposition.

Q. The light was green when you first saw the car, correct?
A. Yes.
Q. You had your deposition taken in this case, did you not?
A. Yes, I did.
Q. And when you testified at your deposition you took an oath to tell the truth,
correct?
A. Yes.
 Q. You took the same oath you took today?
A. Yes.
Q. I take it that your memory of events was better at the time of your deposition
that is now?
A. Maybe, it was almost a year ago.
Q. And you were told that you could look over your deposition before signing
it, correct?
A. Yes, but I didn’t …
Q. Excuse me, I’ll repeat the question. You were told to look over your
deposition before signing it, correct?
A. Yes.
Q. Your honor, I’d like to read form page 64, lines 7-11 of what has been
previously identified as the witness’ deposition.
Judge: You may proceed.
Q. What color was the light when you first saw the car?
Answer. It was red. Were you asked that question as did you give that
answer?
A. Yes.”

(d). The final step is to maximize the damage. It is not enough simply to expose the
inconsistent statement. The cross-examiner must now milk the situation to obtain the
maximum value from the change of the story. This is not done, however, by asking the
witness why the story has changed. What the cross-examiner should do is to prove the
reliability of the earlier version by establishing, through leading questions, all the details
and circumstances that would make the court believe that the earlier version was
correctly perceived in the first instance.

Once the impeachment is complete, MOVE ON. As explained by an author

on the subject: “When you impeach, bells don’t ring, the judge doesn’t applaud and the
adversary doesn’t write an immediate check. To make up for this lack of drama, you
might be tempted to push further:

“So you lied on direct when you testified that the light was
greed?” or, “why have you changed your story?” Restrain yourself. The first
question is argumentative; the answer to the second will elicit an explanation
that adds your name to the author’s as unfortunate developers of the ‘mystic
of cross’.

The same author has a few suggestions for smooth impeachment, to wit:

▪ When you pin down a witness’ testimony, parrot it exactly. If you paraphrase, a witness
may balk, opposing counsel may object that you are misquoting the witness, and the force
of impeachment may be diluted.

▪ If you plan to impeach two or three bits of testimony with prior statements, pin down
each one before proceeding with impeachment.

▪ Remember that you cannot impeach one witness with the statement of a different witness.
For example, if an adverse witness testifies, “The light was green,” you cannot cross-
examine him by asking. “Louise said that the light was red, correct?

9. Impeachment by Omission

A common situation we have frequently encountered in the trial cases is a witness’s

previous silence or failure to state some fact which is contained in his in-court testimony.
Otherwise stated, the witness on the stand has a prior statement in which he failed to mention a
fact to which he has now failed to testify in court. Previous silence or omission is admissible for
impeachment purposes if it concerns some material fact which it would have been natural to
mention at the time.

For example, a police officer testifies in court that immediately after arresting the
defendant, the defendant said: “I don’t know what got into me. It just happened.” That statement
is not in his report. Since it would have been natural for the police officer to record in his report
any statement made by the defendant while effecting the arrest, his failure to do so cast doubt on
his direct testimony. The failure of the report to record the defendant’s statement me\ay be argued
to support the inference that the police officer either made up the statement or confused it with
some other arrest so that his testimony should not be believed.

In the example given, the police officer may be cross-examined as follows:

Q. Officer Doe, right after you arrested Bobby you claim he said. “I don’t know
what got into me. It just happened.” Is that what you are telling us?
A. Yes, sir.
Q. You’re sure that’s what he said?
A. Yes.
Q. Officer Doe, you prepared a written report of this statement, didn’t you?
A. Yes.
Q. You received training on how to prepare such written reports at the police
academy, didn’t you?
A. Yes.
Q. You were thought to include everything about the incident that was
important, right?
A. Yes.
Q. That’s because you, your commanding officer, and the county attorney all
rely on the report to evaluate the case, don’t they?
A. Yes.
Q. One of the most important things to write down is what any person arrested
says about the incident, right?
A. Yes.
Q. In fact, you’re taught to write down the actual words someone you arrest
uses, aren’t you?
A. Yes.
Q. (Have the officer’s report marked as an exhibit, show it to opposing counsel,
then to the witness.) I show you what has been marked Defendant’s Exhibit
#1. That’s your written report?
A. Yes.
Q. Your narrative of the incident covers the entire back side of the form, and is
single-spaced type?
A. Yes.
Q. After typing it you read it over?
A. Yes
Q. You wanted to make sure it was complete and accurate, didn’t you?
A. Yes.
Q. And that it included everything that was important, right?
A. Yes
Q. After making sure it was complete and accurate, you signed that report,
correct?
A. Yes.
Q. The purpose of the report is to have an accurate record of what you saw,
heard, and did, correct?
A. Yes.
Q. You also use such a report to refresh your memory before testifying about
the incident, isn’t that also correct?
A. Yes.
Q. That’s important, because everyone’s memory fades with time, doesn’t it?
A. Yes.
Q. In fact, you read this report today before testifying here, didn’t you?
A. Yes.
 Q. Officer Doe, nowhere in this report that you prepared did you state Bobby
said. “I don’t know what got into me. It just happened.” Isn’t that so?
A. That’s not in the report.
Q. In fact, your report says absolutely nothing about any statement, does it?
A. No.

Technique is to lay a complete foundation for the document, report, or statement that is
silent on a key point as if the document were being accredited for purposes of introducing an
inconsistent statement. This is even more true when examining professional witnesses. In such
cases, their very professionalism must be invoked as much as the credibility of the document
itself.

In the cross-examination of a police officer, a doctor or an expert of any kind, you must
show that (a) the witness appreciates and agrees with the need to be meticulous, and (b) the report
or document which is silent on a key point is the correct place to put such information. For the
impeachment to be successful, you must show the missing information is of such value that it
could not possibly be overlooked or omitted from the report. In other words, you must show that
the fact omitted was of the same or greater importance as the facts included. You must eliminate
the possibility that the fact was omitted inadvertently. While our supreme court has given little
weight to omissions or inconsistencies in affidavits. The exception is when the omission in the
affidavit refers to a very important detail such the affidavit would not have failed to mention it or
the self-contradictions and inconsistencies are on very material or substantial matters.

When you try to conduct an impeachment by omission, the opposing counsel may likely
object that the best evidence is the report affidavit or document, and that the document speaks for
itself. If you happen to have a judge who doesn’t know his rules of evidence, the odds are he will
sustain the objection and frustrate you in your intended cross-examination. The judge will most
likely say: “If what the witness said is not in his report or affidavit, then it’s not there. Just argue
that in your memorandum.
If faced with such objection, you should patiently explain to the judge that the best
evidence rule is not applicable, that said rule only requires the production of the original
document if the contents are in issue, that you have produced the original document and there is
therefore no reason for the operation of the rule, and that the objection “the document speaks for
itself” does not find support in the rules of evidence.

10. Cross-examination of various types of witnesses

The cross-examiner may have to adjust his style and techniques depending on the type of
witness under cross-examination.

(a) Cross-examination of an evasive witness

In the cross-examination of an evasive witness – a witness who avoids pressing your

questions directly – your problem is whether you should press the witness for a clear answer. In
resolving the problem, you will have to consider the materiality and importance of the question
asked, the nature of the answer and the witness probably will give if forced to a showdown, and
the probable reason for the reluctance of the witness to answer directly.

If you think that the evasive manner of the witness’ testimony is making a horrible
impression on the court, you should not attempt to squeeze better answers out of him. Instead,
continue in the same vein and extract as many “I can’t remember”, “I don’t know”, I’m not sure”
responses as possible. Try to get evasive responsive to some of the questions that the witness had
no difficulty answering during the direct examination. Hopefully, the judge will see through the
witness and give little or no weight to his testimony.

If you think that a direct answer to your question is important and that the risk of a
harmful explanation of the witness’ evasion is slight and worth taking, what means should you
adopt in pressing the witness for an answer? One way is to make your questions simple and
pointed, so that you eliminate or at least reduce to a minimum the opportunities for evasion. If in
the face of simplified questions the witness is still evasive, the following techniques should
enable you to insist on an answer while emphasizing a witness’ evasiveness:
1. Repeat the Questions

Q. The bear then went over the mountain, correct?

A. That the bear was always getting loose.
Q. But the bear did go over the mountain, correct?

An alternative to personally repeating a question is or a court reporter to read it. Dot not yourself
instruct a court reporter to reread a question; ask the judge to do so.

2. “I Didn’t Ask X, I Asked Y”

A slight variation perhaps gives greater emphasis to an evasive response. You proceed as follows:

Q. The bear then went over the mountain, correct?

A. That the bear was always getting loose.
Q. I didn’t ask you whether the bear was always getting loose. I asked if the
bear then went over the mountain.

3. Repeat and Move to Strike

A more aggressive response is to combine a repeated question with a motion to strike the non-
responsive one. For example:

Q: The bear then went over the mountain, correct?

A: That the bear was always getting loose.
Q: Your honor, I move to strike the witness’ answer as non-responsive.
Judge: Motion granted
A: All right, I’ll ask you again. The bear then went over the mountain, correct?

4. Ask Judge to Instruct a Witness to Answer

Especially when the witness is evasive on more than one occasion, ask the judge to instruct the
witness to answer.

Q: The bear then went over the mountain, correct?

A: That the bear was always getting loose.
Q: Your honor, will the court please instruct the witness to answer the question.
Judge: Witness, please answer counsel’s question.
A: All right, I’ll ask you again. The bear then went over the mountain, correct?

5. Avoid Arguing With A Witness

No matter what you think of an adverse witness, your courtroom behavior must show respect to
the court and the institution of trial. One aspect for this is to restrain from arguing with witnesses
or answering their questions. You can subtly point out that if witnesses want to ask questions,
they will first have to go to law school.

Q: You leaped without looking, correct?

A: What would you have done in that situation?
Q: What I would have done is not the issue, and I am not under oath. You did
leap without looking, correct?

6. Don’t Settle for “May” and “Might”

“May” and “Might” are two classic weasel words which may deceive you into thinking
that a witness is given your desired response. Consider this exchange.

Q. The chicken reached the other side, correct?

A. It may have.
 The answer is neither a denial nor a positive response. Thus, you should press for a
further response:

Q. Colonel Campbell, isn’t it a fact that the chicken reached the other side?
A. Yes.”
A good caveat to follow is this: if you are not absolutely sure if the answer will be
favorable to your cause, you are risking a great deal by insisting upon an answer. The following is
an amusing example of what can happen if you force a witness to answer without knowing the
probable answer:

Q. Did you talk to your brother during the noon recess?

A. No.
Q. Didn’t I see you in the corridor, talking to your brother, near the settee out
there?
A. Oh, yes, he asked me a question.
Q. What did he asked you?
A. (Paused …) I don’t want to tell you.
Q. What did he asked you?
A. I told you I don’t want to tell you, and you don’t want to know.
Counsel, addressing the Court: I wish you should order him to answer the question.
The Court: Well, he told you that he didn’t want to answer. Now, after the
warning, do you want me to order him to answer?
Counsel, addressing the Court: Yes, I do.
The Court: All right, Mr. Lipper, I am afraid you will have to answer the
question.
A. (Witness folds his arms slowly across his chest, steps back in the witness
stand, pauses, and then speaks.)

He asked me, “Where did sister get that damn fool who is trying the case for
her?

(b) Cross-examination of a lying witness.

There are four rules to be observed when cross-examining a willful perjurer: (i) Adopt a
superior attitude; (ii) Allow the witness to testify freely (iii) Question him on collateral matters;
and (iv) Use the “jumped-around” technique.

You must impress the witness that he will be exposed as a liar unless he admits the truth.
Make him aware you are on to his game, that you know what portions of his testimony are
untruthful. One you convince him of your potential ability to expose his lies, he will lose his
confidence and your task of destroying his testimony becomes easier.

You should allow the witness to testify freely and encourage him to exaggerate. Give him
the impression that his testimony is damaging your client. Then when it becomes apparent even
to him that his story is absurd, ask him to retract and repudiate his earlier testimony.

Since the untruthful witness is probably well prepared with respect to his main testimony,
you should question him on collateral matters. Inquire into facts which are not directly connected
to his main story and force him to resort to his imagination. More likely than not, his concocted
answers will conflict with the truthful answers given by other witnesses.

The “Hop, skip and jump” method of cross-examination (shifting the subject of inquiry
suddenly and frequently) is a technique that you can effectively use in cross-examining an
untruthful witness. Since the witness has memorized his story, you must destroy his train of
thought by shifting from one subject to another so as not to give him time to formulate answers to
fit his false story or if he does so they will be so artless that you will be able to expose them.

You should question the witness in rapid-fire fashion, asking him on collateral matters
and then skipping to some part of his main testimony while his mind is on the other matter. Then
return to some fact not directly connected with his main story. With this way of questioning, the
willful perjurer cannot answer questions as fast as you can ask them and he cannot skip his
answers consistent with each other. You should not stop until you have completely exposed the
witness as a deliberate liar.

(c) Cross-examination of an expert witness

The dangers of haphazard cross-examination without adequate preparation are

accentuated when the witness is an expert. The reasons are: (i) He knows more about his field
than the cross-examiner does; (ii) He is less hampered by rules of evidence since his opinions and
supporting arguments are generally admissible; (iii) Frequently, he is a person of unusual
intelligence; and (iv) Often, he has experience in expressing his ideas persuasively.
Thus, the cross-examination of an expert should be handled with extreme care and with definite
objectives in mind. It calls for extra preparations on your part. You should confer with your own
expert as a general rule and seek his suggestions concerning potential lines of inquiry that may be
fruitful on your cross-examination. Also, you should read the literature in the field to make you
familiar with the subject and to look for sources of potential impeachment. Obtain a copy of
everything the expert has written or published.

The first thing you should do is to check the qualifications of the expert. Even if the
witness has sufficient credentials to qualify him as an expert, you should probe into the weakness
of his qualifications for the purpose of making his testimony less credible. A caveat is in order:
make sure that your questions regarding qualifications and experience do not strengthen the
credibility of the witness by supplying additional data omitted on direct examination. Your
adversary may have deliberately omitted such data with the purpose of leaving the witness more
qualifications to add if you should undertake to question his expertise.

When cross-examining an expert witness, never ask broad questions which will allow
him to expand his remarks made on direct testimony. Your questions should be sharp and direct,
calling for “yes” is to question the factual assumptions or factual parameters on which his opinion
is based. This is the area where the expert is especially vulnerable and where you should have an
edge over the expert.
The opinion and conclusions of an expert are valid only if the data on which the opinion
and conclusions are based are themselves accurate. It may very well happen that the expert based
his opinion solely or principally on data and information received from the client, and had made
no effort to verify that data or information. If you can show that the data or information are
inaccurate or incomplete, the expert’s opinion and conclusion has no factual basis.

With respect to the factual assumptions upon which the expert based his opinion, you can
ask the expert if his opinion would change if the assumptions were different. If the expert agrees,
you can later argue that the other party’s expert supports your side since your assumptions are
true. If the expert disagrees, you can later argue that the expert is biased and will never change his
opinion regardless of the facts.

You can also impeach an expert witness with the use of learned treatises. Before doing
so, you should first make the witness commit to direct examination testimony you want to attack.
Then get the witness committed to the authoritative standing of the particular treatise before you
produce the writing itself for the expert to read and consider carefully. Having established the
authority of the book, you may then read selected passages contradicting his opinions (after
having the passages properly marked), or may hand him the book and ask that he read the
selected passages. Then ask the witness: “Do you agree with the treatise?” Regardless of the
answer, the witness is impeached.

(e) Cross-examination of a Hostile Witness

There are occasions when you have to all as your witness someone closely identified with
the defendant. While the testimony is technically a direct examination, it is actually a cross-
examination because you are allowed to ask leading questions and you are allowed to impeach
him.

Under Section 12, Rule 132, a witness may be considered as unwilling or hostile only if
so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to
testify, or his having misled the party into calling him to the witness stand.
 If declared by the court as an unwilling or hostile witness, the consequence is that you are
not only allowed to ask leading questions but you can also impeach him in all aspects as if he had
been called by the adverse party will be limited to “the subject matter of his examination-in-
chief”.

If the hostility of the witness stems from some relationship with the defendant – because
he is a relative, close friend, an employee or business associate – your initial questions should
establish the relationship between the witness and the defendant. Once the relationship is shown
by the answers of the witness or some documentary proof you may have, you may ask the court
to declare him as a hostile witness.

A witness may be unwilling or uncooperative for a variety of reasons. He may resent the
imposition of his time required by the trial, or he may have strong reservations about the justness
of the plaintiff’s or defendant’s cause, or he may fear reprisals by the adverse party. Again, you
will have to initially establish that the witness is an unwilling one and have him so declared by
the court.

For the court to declare a witness hostile because you were misled into calling him to the
witness stand, you must establish a showing of surprise. The usual procedure is as follows: When
the witness surprises you at trial by giving totally unexpected answers adverse to your side, ask
enough additional questions so that your surprise is made apparent to the court. You must explain
to the judge that you had been surprised and that you had anticipated substantially different
testimony. Tell the court what your pre-trial interviews showed. Where you have interview notes,
or the witness made previous written statements, show them to the judge. If a witness admits
making prior inconsistent statement, you have demonstrated hostility.

The technique in cross-examining a witness who misled you into calling him into a
witness stand is to have the witness admit making the prior inconsistent statement and then
proceed with a cross-examination of the witness. Through the use of leading questions, elicit the
information you want, and stop. The prudent approach is to conduct as short an examination as
can be done under the circumstances.

d. Redirect Examination

After a witness has been cross-examined, the next stage in the proceeding is his re-
examination by the party calling him.

Section 7, Rule 132 stated that: “After the cross-examination of the witness has been
conducted, he may be re-examined by the party calling him, to explain or supplement his answers
given during the cross-examination. On re-direct examination, questions on matters not dealt with
during the cross-examination may be allowed by the court in its discretion.”

Thus, the purpose of the re-direct examination is to rebut, explain, supplement, amplify
or further develop matters raised during the cross-examination. This means the re-direct
examination is limited to those matters touched upon on cross-examination; any question relating
to a matter not covered by the cross-examination is subject to objection as being improper on re-
direct examination.

The same rules of evidence for direct examination will apply to the re-direct examination.
Leading questions are not allowed on re-direct examination.

The successful re-direct examination is that which explains and neutralizes the apparent
contradictions, admissions, or apparently false statements developed by the opposing counsel on
his cross-examination.

In elucidation, the following are the basic things you can do on re-direct examination.

(a) You can rehabilitate a witness who has been impeached with a prior inconsistent
statement by asking the witness why the inconsistency happened.
 (b) You can ask the witness to correct cross-examination testimony that was wrong
or misleading.

(c) You can use the re-direct examination to develop the new matter brought out on
cross-examination.

A good re-direct examination places the case back in proper perspective. It takes up the
points developed on cross-examination and by careful questioning shows their true relationship to
the facts as a whole, or the broad aspects of the case.

One important you should remember: Re-direct should focus in key points that make a
difference. Therefore, when you re-direct, go immediately to a key point, make it forcefully and
efficiently, and go to the next point. End on a high note, then immediately stop. If you don’t have
an important point that you can make forcefully, don’t re-direct at all.

Do not have your witness explain or clarify testimony on which he was not impeached. In
so doing, you will merely expand the possible scope of the opposing counsel’s re-cross-
examination.

There are situations that it may not be advisable to pursue a re-direct examination if you
are uncertain as to whether an inconsistency or damaging testimony can be adequately explained.
Frequently, any explanation that the witness offers sounds like a lame after thought, and simply
exacerbates an already bad situation. For example, where your witness has made a definite
misstatement upon his cross-examination, and you have no way of knowing in advance whether
he knows of his mistake, it is not well to take a chance and attempt to correct the witness by re-
direct examination on that point. In the event you fail, and the witness repeats the same story, the
effect is merely to further impress the inconsistency in the mind of the judge. It also signals to the
judge that you are personally dissatisfied with the conduct of your witness, which is unfavorable
to create.

A good rule to follow is that your witness’ testimony has been left substantially intact, it
is probably best left to leave “well enough alone” and forego re-direct examination. You need not
conduct a re-direct examination because like a mountain, “it’s there”. Re-direct examination may
just open the door to “re-cross examination, with the possibility that the new and unforeseen
points of weakness may thus be developed.

A cross-examiner should welcome a re-direct examination by the opposing counsel.

Since re-direct examination can only deal with the same subjects covered by the cross-
examination, the cross examiner in effect has chosen the ground upon which the re-directing
attorney must fight. This means that the cross examiner is prepared to fight in the chosen
battlefield. If the cross examination went well and the opposing attorney decides to re-direct, the
cross-examiner must view it as an additional opportunity to devastate the witness again; it is a
second bite at the apple, as phrased by one author. However, the cross-examiner is well advised
to limit his re-cross-examination to areas already prepared, or to forego recross-examination as
unnecessary.

During the re-direct examination, the cross-examiner must be alert to object to leading
questions and to questions going beyond the scope of the cross-examination. More often than not,
the re-directing attorney will attempt to lead the witness because open-ended questions entail
more risks and he wants to avoid the witness doing any more damage than has already been done.
If the objections to leading questions are sustained by the judged, the re-directing lawyers may
decide to abandon the re-direct examination. Stripped of the availability of leading questions, the
re-directing attorney must try to rehabilitate a tired, confused and probably demoralized witness.
Since the re-direct examination must delve into areas in which the witness was not prepared by
the calling party, every open-ended question now risks a further bad answer that will permit
further damaging cross-examination.

A cross-examiner must always object to re-direct examination that is beyond the scope of
the cross-examination. If the objection is sustained by the judge, the re-directing lawyer is badly
hurt; the problem cannot be cured by phrasing or by laying a proper foundation. The result is that
the re-directing lawyer is forced to abandon the area or matter objected to and quite possibly
abandon the entire re-direct effort. An aborted re-direct examination defeats or illustrates the goal
of the re-directing attorney to finish on a high note

e. Re-cross examination

Upon the conclusion of the re-direct examination, the adverse party may cross-examine
the witness on matters stated in his re-direct examination, and also on such other matters as may
be allowed by the court in its discretion.

Re-cross-examination, in essence, is nothing but another cross-examination, but its scope

is confined to what has been touched upon in the re-direct examination. Thus, only matters newly
brought up in the re-direct examination may be the subject of re-cross-examination.

If the cross-examiner has done an effective job, there is usually no need to engage in re-
cross examination. Any further questions at this point are likely to be repetitious and anti-
climatic. Recross-examination should therefore be sparingly invoked, and even then it should be
direct and to the point. Anything further may try the patience of the judge.

F. Rebuttal and Surrebuttal Evidence

Rebuttal is an introduction of additional evidence by the plaintiff – who has the burden of
proof – to rebut defendant’s evidence after the latter has presented evidence and rested.
Defendant also has a last chance to rebut specific matters raised by plaintiff’s rebuttal evidence.
This is called the defendant’s sur-rebuttal case.

Rebuttal evidence should be evidence in denial of affirmative fact which your opponent
has sought to prove. It does not refer to evidence that merely serves to contradict witnesses on the
other side, or add further collaboration to the testimony given on your affirmative case. In other
words, the purpose of rebuttal is not to rehash the plaintiff’s case in chief, but to offer counter-
proof on matters which could not be adequately countered through cross-examination, such as the
introduction of “extrinsic evidence” for impeachment or rehabilitation.
Thus, you may offer rebuttal evidence: (a) to meet or offset any affirmative proof offered
by the other side, or (b) to introduce “extrinsic evidence” for impeachment, or (c) to support the
credibility of the witness that has been attacked by proof upon cross-examination as to his
character.

You should not present rebuttal evidence unless the evidence meets or offsets affirmative
matter presented by your opponent. Evidence which is purely cumulative in character is not
properly used in rebuttal.

It is improper to use the rebuttal stage to offer evidence which should have been offered
upon the principal examination but which though oversight was not introduced.

If the plaintiff introduces new matters on rebuttal, the defendant may then offer counter-
evidence on sur-rebuttal by calling witnesses again on direct examination.

G. Objections

An objection is a procedure used to oppose the introduction of improper evidence or to

oppose inappropriate behavior and procedure. When inadmissible evidence is offered, our
adversary system places upon the other party the responsibility of objecting to the evidence; only
after a timely objection will the judge determine whether the evidence is inadmissible.

A trial lawyer must have a good command of the rules of evidence and he must know
when to make timely objections and how to make such objections in a proper manner. An
objection must be made “as soon as the grounds therefore shall become reasonably apparent” or
the objection may be deemed waived. [clarify word] an objection should state the specific legal
basis for the objection. How specific must the objection be? As a rule, the objection should be
“sufficiently specific for the judge and opposing counsel to know which of the many rules of the
evidence is being invoked. If a general objection is overruled, the objection will solely win on
appeal, except when “there is no purpose or theory of inadmissibility to support the judge’s
ruling”.

So if you object to an improper question, you should specify the precise nature of your
objection. Include every ground you can think of which renders the question objectionable. To
refresh your memory, below is a summary of the common legal objections:

A. Objections To Form of Questions

1. Leading
1. Calls for a narrative answer
2. Repetitious (already answered)
3. Vague, ambiguous, unintelligible
4. Multiple or compound question
5. Misleading
6. Argumentative
7. Improper characterization
B. Objections to Substantive Evidence (Impropriety of Subject Matter of Inquiry)
1. Calls for irrelevant answers
2. Calls for immaterial answers
3. Witness is incompetent
4. Violates the best evidence rule
5. Calls for a privilege communication
6. Calls for a conclusion
7. Calls for an opinion (by an incompetent witness)
8. Calls for a hearsay answer
9. Improper for re-direct examination or re-cross examination
10. Speculative
11. Violates the parole evidence rule
12. Question relates to a matter involving an offer of compromise
13. Violates the right of the witness against self-incrimination
14. Question relates to a matter as to which witness is disqualified to testify
under Dead Man’s Statute.
C. Objections to Manner of Questioning
1. Counsel is badgering the witness
2. Insulting or sarcastic question

As a practical matter, you can use objections both as a strategic and tactical tool. While
the principal purpose of objections is the exclusion of improper evidence, you may also use
objections for the following responses:

a. to control the form of questions;

b. to protect a witness form harassment or improper manner of questioning by

the opposing counsel;

c. to intimidate or rattle an inexperienced opponent.

Making an objection necessarily has the effect of breaking the flow and pace of your
opponent’s examination. While it is unethical to make an unfounded objection solely to disrupt
your opponent, it is proper to make an objection whether there is a legitimate evidentiary basis for
it, even if the inevitable effect is to disrupt your opponent’s presentation. If the opposing counsel
is cross-examining your witness, an objection will also give your witness more time to consider
his answer, even though your objection is overruled.

When should you object? Regardless of the character of the question and the basis of the
objection available, ordinarily you should not object if the answer should be neutral or favorable
to you. Object only when either the answer or the form of the question is improper and will result
in harm to your client’s cause.
 Should you object a leading question? It would seem that lawyers distinctively object to
leading questions. Usually, it is the inexperienced lawyers who are quick to object to leading
questions. The experienced ones know that were the evidence called for by the question is
admissible or does not refer to a critical or material matter, it is better not to object to a leading
question since the question can easily be rephrased and the desired answer obtained. To object to
every leading question will be a waste to everyone’s time; such questions are in many instances
actually helpful to the speed and continuity of the trial, and they allow the witness to tell his story
in the most effective manner.

It is an altogether different matter, however, if your adversary persists in asking leading

questions. The generally preferred practice is not to object to every such question but to call the
matter to the attention of the court by periodic objections pointing out that the practice is being
followed continuously and that the witness should be allowed to tell his own story instead of
hearing the lawyer's version of it. After the practice has become persistent, you may also request
and obtain an instruction by the court to the opposing counsel not to lead the witness.

If your contemplated objection is not merely based on the form of the question, but on the
impropriety of the subject matter of inquiry, you should object only if you think there is a good
chance of the objection being sustained. An objection will serve to call the special attention of the
court to the unfavorable evidence you seek to exclude, thus tending to emphasize its significance.
If your objection is overruled, the added emphasis given to it by your unsuccessful effort to keep
the court from considering it may cause it to be more damaging than if you had permitted it to
come without objection.

H. Offer of Proof

Section 40, Rule 132 of the Rules of Court reads:

“Sec. 40. Tender of excluded evidence. – if documents or things offered in evidence are
excluded by the court, the offer may have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record the name and the personal
circumstances of the witness and the substance of the proposed testimony.”

The tender of excluded evidence under Section 40, Rule 132 is better known as an “offer
of proof”

When your opponent’s objection has succeeded in excluding importance evidence, you
must make an effort of proof. The offer is necessary for two reasons: (a) First, it may convince
the judge to reverse the ruling; and (b) Second, the offer will create a record so that the reviewing
court will know what the excluded evidence was and be able to determine if the exclusion was
improper, and, if so, whether the improper exclusion constituted reversible terror.

If the evidence excluded is oral, an offer of proof must “state for the record of the name
and other personal circumstances of the witness and the substance of the proposed testimony”
The offer of proof must normally consist of two parts: (a) a description of the evidence being
proposed; and (b) an explanation of how that evidence related to the case, it its relevance is not
clear from the context.

Generally, an offer of proof is required only on direct examination, not cross-

examination. There are two common reasons for this limitation: (a) the cross-examiner will often
not know what the witness would have testified to had the objection not been sustained; and (b)
the likely answer of the witness will often be obvious to everyone, because the question is
probably a leading one.

CONCLUSION

Before we conclude, you may be interested to know the traits and attributes of a good
lawyer. Are good trial lawyers born or are they made? Is the practice of trial law cerebral or
visceral?

A textbook writer attempted to list down what he considers to be the traits of a good
advocate, to wit: (a) intellectual breath, (b) desire to become a trial lawyer, (c) the ability to
“think on your feet”, (d) combativeness, and (e) sensitivity. According to this author, some of the
skills of a trial lawyer can be taught, some must be experienced and others must spring from the
genes of your forebears.

A trial lawyer must enjoy the thrill and exhilaration of combat; you must relish the
thwack of a well-landed left hook.

But the most meaningful attribute of an advocate is moral integrity and social
commitment. The true trial lawyer must have a heart. Without this attribute, a trial lawyer is no
better than a mere technician.