Many jury consultants will tell you that juries decide cases after the cross examination of a key witness. Cross examination is very important. The concept with cross examination is using deductive reasoning to go from very general to very specific conclusions. There is an excellent book by Larry Posner and Roger Dodd called Cross Examination: Science and Techniques. It outlines three rules of cross examination. Rule One is that you only ask leading questions. That is how it differs from direct examination. In direct examination, you want the jury to focus on the witness. He is telling the story and giving the facts. On cross examination, by asking leading questions, you are able to control the witness. These are usually hostile witnesses, people who are adverse to your case, and so you want to focus on you. You want the jury to be hearing your questions as the evidence. Avoid open-ended questions.
Rule Two is that your questions have one fact per question. You want short, yes or no questions, so you can easily take the jury from a very general to a specific conclusion. Then, Rule Three is that you break cross examination into a series of logical progressions to each specific goal. I create a sheet for cross examinations with several columns. I have my questions and in one part of the column, I list the reference where I find the information, so if I am asking the witness a certain question, I have his deposition with the page and line where he gave a previous answer. If he says something different, then I can read from his deposition to contradict his testimony at trial.
It is important to remember that you don’t want to badger a witness under cross examination. Jurors do not like it when you are attacking someone unless they really believe that person is deserving of it. Rather than badgering, you want to use facts to discredit the witness. Also, recognize that there is a relationship between voir dire, where you first lay out the theory of the case to the jury, your opening statement, cross examination, and your closing argument. At trial, you have to keep your theory of the case in mind at all parts. You want to keep bringing in your keywords and key phrases to imprint upon the jury your theory of the case and how the evidence you are presenting is consistent with the theory.
There is a psychological principle called primacy and it tells us that a fact finder is more likely to remember the first thing they hear for the longest period of time. That is why it’s important to make a strong opening statement, filled with emotion and anchoring your tagline. There are certain things that you want the jurors to be repeating to themselves when they are doing their deliberations.
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