Cross examination is a great case of \u201cya gotta learn the rules before you break \u2018em.\u201d<\/p>\n
The rules were codified by Irving Younger in his famous Ten Commandments of Cross Examination.<\/p>\n
I\u2019ve highlighted in bold the ones I break most often:<\/p>\n
I. Be brief.<\/p>\n
II. Short questions, plain words.<\/p>\n
III. Always ask leading questions<\/strong>.<\/p>\n IV. Don\u2019t ask a question to which you do not know the answer<\/strong>.<\/p>\n V. Listen to the witness\u2019s answers.<\/p>\n VI. Don\u2019t quarrel with the witness<\/strong>.<\/p>\n VII. Don\u2019t allow the witness to repeat his direct testimony<\/strong>.<\/p>\n VIII. Don\u2019t permit the witness to explain his answers<\/strong>.<\/p>\n IX. Don\u2019t ask the \u201cone question too many.\u201d<\/strong><\/p>\n X. Save the ultimate point of your cross for summation<\/strong>.<\/p>\n Now, before I get to the rule breaking, let me give Younger his due. These commandments provide a helpful guide to the \u201cclassic\u201d cross examination. If you\u2019re a newer lawyer learning how to do cross, you should start by doing it this way.<\/p>\n 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.<\/p>\n But I often break the other rules. This is partly a function of my particular area of practice\u2014defense of noncompete and trade secret lawsuits\u2014but my reasons may be instructive for you, whatever kind of litigation practice you have.<\/p>\n To make this more concrete, let\u2019s use my usual hypothetical noncompete lawsuit, Paula Payne Windows v. Dawn Davis<\/em>.<\/p>\n Dawn was Paula\u2019s 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\u2019 \u201cnotice\u201d of the hearing, and is now in court trying to convert the TRO into a temporary injunction barring Dawn from working for any \u201cCompetitive Business,\u201d i.e. one that sells windows, in the \u201cRestricted Territory,\u201d which means the entire State of Texas.<\/p>\n Paula Payne\u2019s CFO, Tony Toosmart, is on the witness stand. I haven\u2019t taken his deposition. But I proceed undaunted.<\/p>\n Q: Mr. Toosmart, you testified earlier that the purpose of the noncompete in Ms. Davis\u2019s agreement is to protect Paula Payne\u2019s goodwill with its customers, right?<\/em><\/p>\n A: Yes. I mean, that\u2019s one of the purposes. It\u2019s not the only one. <\/em><\/p>\n Here I have already broken the Seventh Commandment: don\u2019t allow the witness to repeat his direct testimony.<\/p>\n But it\u2019s ok. I\u2019m laying the foundation for attacking that direct testimony. The \u201cclassic\u201d 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.<\/p>\n Q: Ok, so it\u2019s one of the purposes. And you would agree with me that the noncompete language was drafted to serve that purpose, right? <\/em>\u00a0<\/em><\/p>\n A: I didn\u2019t draft it. <\/em>\u00a0<\/em><\/p>\n Q: But you agree it is intended to serve that purpose, right?<\/em><\/p>\n A: Uh, yes, I guess so. <\/em><\/p>\n Now I\u2019ve arguably broken another commandment: Don\u2019t ask a question to which you do not know the answer. I didn\u2019t take his deposition, so I don\u2019t really know what he\u2019s going to say to this.<\/p>\n On the other hand, I do know. Of course he\u2019s going to say that\u2019s the purpose. What else is he going to say? Worst case, he might say \u201cI\u2019m not sure.\u201d<\/p>\n I continue:<\/p>\n Q: And you would agree with me that the restriction should be reasonably limited to serving that purpose, correct? <\/em>\u00a0<\/em><\/p>\n A: Well, it is limited to that purpose. <\/em><\/p>\n Q: I appreciate that, but my question is whether you agree it should be limited to serving that purpose?<\/em><\/p>\n Here, it doesn\u2019t really matter how the witness responds. If he admits it, great. But if he disputes it, that\u2019s almost better, because he sounds unreasonable.<\/p>\n Either way, I\u2019ve set up my next line of questioning:<\/p>\n Q: This agreement says he can\u2019t engage in any \u201cCompetitive Business,\u201d regardless of whether he takes your customers, right? <\/em>\u00a0<\/em><\/p>\n A: That\u2019s what it says. <\/em>\u00a0<\/em><\/p>\n Q: And that\u2019s not limited to the purpose of protecting goodwill with your customers, is it? <\/em>\u00a0<\/em><\/p>\n A: That\u2019s your opinion. <\/em><\/p>\n Q: Do you disagree? <\/em><\/p>\n A: I\u2019m sorry, what was the question?<\/em><\/p>\n Here I\u2019m breaking another commandment: don\u2019t quarrel with the witness. In fact, that\u2019s the whole point. In a sense, I\u2019m using the witness as a foil to make my key legal argument: that the restriction is unreasonable and unenforceable. And sometimes, if I\u2019m lucky, the witness will admit I\u2019m right.<\/p>\n I\u2019m 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.<\/p>\n Look, I\u2019m no famous trial lawyer, but in my experience, you need to start winning your case with the first witness. You can\u2019t 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\u2014or at least understand the key points of your case.<\/p>\n This is especially true in injunction hearings, which can be very short. You might just get an hour (or less). If you don\u2019t score points in the first 30 minutes, you\u2019re in trouble. I\u2019ve seen experienced lawyers crash and burn by acting like they have all day.<\/p>\n With that in mind, let\u2019s finish up our cross of Mr. Toosmart with some more rule breaking:<\/p>\n Q: My question is whether you agree with me that this restriction is broader than necessary to protect your company\u2019s goodwill with its customers? <\/em>\u00a0<\/em><\/p>\n A: No, I don\u2019t agree with that. <\/em><\/p>\n Q: Why not? <\/em><\/p>\n A: Ms. Davis signed this agreement. She agreed to this. <\/em><\/p>\n Q: That\u2019s not my question. I\u2019m asking why you think it\u2019s necessary to prevent Ms. Davis from doing business with clients your company never did business with.<\/em><\/p>\n Proponents of the \u201cclassic\u201d approach to cross examination just gasped when I asked \u201cwhy not?\u201d You never<\/em> do that!<\/p>\n It breaks so many rules. It\u2019s not a leading question. I don\u2019t know how the witness is going to answer. And not only does it permit<\/em> the witness to explain his answer, it invites<\/em> him to explain.<\/p>\n But in most cases, I\u2019m going to do it anyway, and I think it makes for a more effective cross examination.<\/p>\n I read a book by a famous trial lawyer who said it\u2019s not enough to just get the witness to admit all the nuggets you found in his deposition that help your case. That\u2019s too dry. At some point you have to \u201cmix it up\u201d with the witness. Especially the other side\u2019s key witness.<\/p>\n And in my humble opinion, this approach works best when you haven\u2019t<\/em> taken the witness\u2019s deposition.<\/p>\n Once again, I\u2019m bucking the conventional wisdom. The typical approach is to take the deposition of every important witness before trial.<\/p>\n Especially in BigLaw. You don\u2019t want to be surprised by anything at trial. Plus, think of the billable hours. So they take all the depositions.<\/p>\n I don\u2019t do that. In many cases, I don\u2019t take any depositions.<\/p>\n 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\u2019s fees. Not to mention the court reporter fees (don\u2019t get me started).<\/p>\n Plus, in the vast majority of cases, my clients are never going to recover the legal fees they spend defending the suit.<\/p>\n 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.<\/p>\n But cost is not the only reason I don\u2019t 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\u2019re just giving the witness a preview of your key points and helping him prepare.<\/p>\n In contrast, it\u2019s a great feeling watching the witness squirm because he has never tangled with you before and doesn\u2019t know what to expect. At worst, he\u2019s going to disagree with your points and look defensive or unreasonable. At best, he may admit some of your key points because he\u2019s caught off guard.<\/p>\n Granted, this approach doesn\u2019t 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\u2019m not too worried about the witness surprising me.<\/p>\n And for that reason, I\u2019m willing to break the commandment that says don\u2019t ask \u201cone question too many.\u201d<\/p>\n Sure, I might get burned by an answer I don\u2019t like. But if there\u2019s one thing worse than asking one question too many, it\u2019s not<\/em> asking the one additional question that could have tipped the scales in your favor. So I\u2019ll take that chance.<\/p>\n Even if it breaks the rules.<\/p>\n _________________<\/p>\n These are his opinions, not the opinions of his firm or clients. Reasonable people can disagree. Every case is different, so don\u2019t rely on this post as legal advice for your case. <\/em><\/p>\n The post Cross Examination on a Budget<\/a> appeared first on Zach Wolfe Law Firm<\/a>.<\/p>\n\n","protected":false},"excerpt":{"rendered":" Sometimes you have to break the rules Cross examination is a great case of \u201cya gotta learn the rules before you break \u2018em.\u201d The rules were codified by Irving Younger in his famous Ten Commandments of Cross Examination. I\u2019ve highlighted in bold the ones I break most often: I. Be brief. II. Short questions, plain […]<\/p>\n","protected":false},"author":1,"featured_media":7069808,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[4995,1770,32745],"dealstore":[],"offerexpiration":[],"class_list":["post-7069807","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-budget","tag-cross","tag-examination"],"yoast_head":"\nDon\u2019t let the witness repeat his direct testimony? <\/strong><\/h3>\n
Don\u2019t ask a question you don\u2019t know the answer to? <\/strong><\/h3>\n
Don\u2019t quarrel with the witness? <\/strong><\/h3>\n
Save the ultimate point for argument? <\/strong><\/h3>\n
Don\u2019t permit the witness to explain his answers?\u00a0<\/strong><\/h3>\n
Do you really need to take the deposition? <\/strong><\/h3>\n
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Zach Wolfe (zach@zachwolfelaw.com<\/a>) is a Texas trial lawyer who defends noncompete and \u201ctrade secret\u201d lawsuits at Zach Wolfe Law Firm (zachwolfelaw.com<\/a>). Thomson Reuters has named him a Texas \u201cSuper Lawyer\u201d\u00ae for Business Litigation every year since 2020. <\/em><\/p>\n