Sometimes you have to break the rules
Cross examination is a great case of “ya gotta learn the rules before you break ‘em.”
The rules were codified by Irving Younger in his famous Ten Commandments of Cross Examination.
I’ve highlighted in bold the ones I break most often:
I. Be brief.
II. Short questions, plain words.
III. Always ask leading questions.
IV. Don’t ask a question to which you do not know the answer.
V. Listen to the witness’s answers.
VI. Don’t quarrel with the witness.
VII. Don’t allow the witness to repeat his direct testimony.
VIII. Don’t permit the witness to explain his answers.
IX. Don’t ask the “one question too many.”
X. Save the ultimate point of your cross for summation.
Now, before I get to the rule breaking, let me give Younger his due. These commandments provide a helpful guide to the “classic” cross examination. If you’re a newer lawyer learning how to do cross, you should start by doing it this way.
I will also say that three of the commandments apply all the time. Brief is always better than long winded. Short questions with plain words are always good. And you should always listen to the answers.
But I often break the other rules. This is partly a function of my particular area of practice—defense of noncompete and trade secret lawsuits—but my reasons may be instructive for you, whatever kind of litigation practice you have.
To make this more concrete, let’s use my usual hypothetical noncompete lawsuit, Paula Payne Windows v. Dawn Davis.
Don’t let the witness repeat his direct testimony?
Dawn was Paula’s star sales person, before she left to join competitor Real Cheap Windows. Paula sued Dawn for breaking her noncompete, got a TRO by giving Dawn two hours’ “notice” of the hearing, and is now in court trying to convert the TRO into a temporary injunction barring Dawn from working for any “Competitive Business,” i.e. one that sells windows, in the “Restricted Territory,” which means the entire State of Texas.
Paula Payne’s CFO, Tony Toosmart, is on the witness stand. I haven’t taken his deposition. But I proceed undaunted.
Q: Mr. Toosmart, you testified earlier that the purpose of the noncompete in Ms. Davis’s agreement is to protect Paula Payne’s goodwill with its customers, right?
A: Yes. I mean, that’s one of the purposes. It’s not the only one.
Here I have already broken the Seventh Commandment: don’t allow the witness to repeat his direct testimony.
But it’s ok. I’m laying the foundation for attacking that direct testimony. The “classic” approach would say just jump right to the attack, but I disagree. My attack will be more effective if I start by making the witness re-commit to his position, which I am about to undermine.
Don’t ask a question you don’t know the answer to?
Q: Ok, so it’s one of the purposes. And you would agree with me that the noncompete language was drafted to serve that purpose, right?
A: I didn’t draft it.
Q: But you agree it is intended to serve that purpose, right?
A: Uh, yes, I guess so.
Now I’ve arguably broken another commandment: Don’t ask a question to which you do not know the answer. I didn’t take his deposition, so I don’t really know what he’s going to say to this.
On the other hand, I do know. Of course he’s going to say that’s the purpose. What else is he going to say? Worst case, he might say “I’m not sure.”
Don’t quarrel with the witness?
I continue:
Q: And you would agree with me that the restriction should be reasonably limited to serving that purpose, correct?
A: Well, it is limited to that purpose.
Q: I appreciate that, but my question is whether you agree it should be limited to serving that purpose?
Here, it doesn’t really matter how the witness responds. If he admits it, great. But if he disputes it, that’s almost better, because he sounds unreasonable.
Either way, I’ve set up my next line of questioning:
Q: This agreement says he can’t engage in any “Competitive Business,” regardless of whether he takes your customers, right?
A: That’s what it says.
Q: And that’s not limited to the purpose of protecting goodwill with your customers, is it?
A: That’s your opinion.
Q: Do you disagree?
A: I’m sorry, what was the question?
Here I’m breaking another commandment: don’t quarrel with the witness. In fact, that’s the whole point. In a sense, I’m using the witness as a foil to make my key legal argument: that the restriction is unreasonable and unenforceable. And sometimes, if I’m lucky, the witness will admit I’m right.
Save the ultimate point for argument?
I’m also breaking the commandment that says save the ultimate point for argument. This is probably the rule of classic cross examination I violate the most.
Look, I’m no famous trial lawyer, but in my experience, you need to start winning your case with the first witness. You can’t afford to wait for closing argument. By the time you get done with cross of that first witness, the judge or jury should be on your side—or at least understand the key points of your case.
This is especially true in injunction hearings, which can be very short. You might just get an hour (or less). If you don’t score points in the first 30 minutes, you’re in trouble. I’ve seen experienced lawyers crash and burn by acting like they have all day.
Don’t permit the witness to explain his answers?
With that in mind, let’s finish up our cross of Mr. Toosmart with some more rule breaking:
Q: My question is whether you agree with me that this restriction is broader than necessary to protect your company’s goodwill with its customers?
A: No, I don’t agree with that.
Q: Why not?
A: Ms. Davis signed this agreement. She agreed to this.
Q: That’s not my question. I’m asking why you think it’s necessary to prevent Ms. Davis from doing business with clients your company never did business with.
Proponents of the “classic” approach to cross examination just gasped when I asked “why not?” You never do that!
It breaks so many rules. It’s not a leading question. I don’t know how the witness is going to answer. And not only does it permit the witness to explain his answer, it invites him to explain.
But in most cases, I’m going to do it anyway, and I think it makes for a more effective cross examination.
I read a book by a famous trial lawyer who said it’s not enough to just get the witness to admit all the nuggets you found in his deposition that help your case. That’s too dry. At some point you have to “mix it up” with the witness. Especially the other side’s key witness.
And in my humble opinion, this approach works best when you haven’t taken the witness’s deposition.
Do you really need to take the deposition?
Once again, I’m bucking the conventional wisdom. The typical approach is to take the deposition of every important witness before trial.
Especially in BigLaw. You don’t want to be surprised by anything at trial. Plus, think of the billable hours. So they take all the depositions.
I don’t do that. In many cases, I don’t take any depositions.
There are several reasons for this. First, taking depositions is expensive. Most of my clients are individuals or smaller companies who are already struggling to afford the attorney’s fees. Not to mention the court reporter fees (don’t get me started).
Plus, in the vast majority of cases, my clients are never going to recover the legal fees they spend defending the suit.
So, as I often tell clients, they should think of the legal fees like throwing stacks of cash in the fireplace. The goal should be to burn as few dollars as possible, while doing only what is essential to win.
But cost is not the only reason I don’t take a lot of depositions. The other, somewhat surprising reason is that taking the deposition of the key witness can make the cross examination worse. Often, you’re just giving the witness a preview of your key points and helping him prepare.
In contrast, it’s a great feeling watching the witness squirm because he has never tangled with you before and doesn’t know what to expect. At worst, he’s going to disagree with your points and look defensive or unreasonable. At best, he may admit some of your key points because he’s caught off guard.
Granted, this approach doesn’t work for all trial lawyers in all situations. One reason I can get away with it is that I have a specialized practice where I deal with the same basic issues over and over. I know the arguments. I know the counter-arguments. I know the counter-counter arguments. So I’m not too worried about the witness surprising me.
And for that reason, I’m willing to break the commandment that says don’t ask “one question too many.”
Sure, I might get burned by an answer I don’t like. But if there’s one thing worse than asking one question too many, it’s not asking the one additional question that could have tipped the scales in your favor. So I’ll take that chance.
Even if it breaks the rules.
_________________
Zach Wolfe ([email protected]) is a Texas trial lawyer who defends noncompete and “trade secret” lawsuits at Zach Wolfe Law Firm (zachwolfelaw.com). Thomson Reuters has named him a Texas “Super Lawyer”® for Business Litigation every year since 2020.
These are his opinions, not the opinions of his firm or clients. Reasonable people can disagree. Every case is different, so don’t rely on this post as legal advice for your case.
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