In “Five Easy Pieces”, Jeffry Finer writes about new theories and techniques for developing killer cross-examinations. Traditional wisdom states that lawyers should prepare for trial by working backwards from the closing argument. However, Finer argues that lawyers should create their theory of the case from the cross-examination.
Planning cross-examinations forces lawyers to confront the facts beyond change and develop a realistic theory of the case. The facts beyond change (“FBC”) are those facts that cannot be disputed. These facts can be helpful, fatal, or neutral. It is up to the lawyer to identify, categorize, and exploit these facts under the cross-examination.
Anytime that an element of your theory is matched by an [Facts Beyond Change], develop the point by exploiting the indisputable fact. The theory can only benefit from its association with a fact beyond change.
Another crucial element of the cross-examination is using short declarative statements to get the witness into “yes” mode. A great way to get the witness into yes mode is through using transitions. Finer writes:
For example, to begin a cross on the expert’s qualifications, in which you do not want the witness running for cover into another topic begin with a transition question:
Q: Doctor, I’d like to ask you some questions regarding your training at Podunk U, you understand?
A: Allright. [now you can do your declaratives]
Q: You attended night classes.
Q: For three years. [learned from interviewing his teacher at Podunk U…]
Q: The program was a two-year program.
Q: The program required two labs.
Q: You transferred one lab credit from Fipple State Voc-School.
Q: You had to retake your Podunk U lab a second time.
The transition statement helps to narrow the discussion, secures the witnesses agreement, and gets a free “yes”. Without the transition, the witness has an easier time wiggling away. The tighter the topic used in the transition, the cleaner the declarative statements will flow. Note, however, that the declaratives must properly fit under the scope of the transition. So long as they do, you have a powerful means to control the witness’s attempts to run away.
I recommend reading Finer’s article. It is an easy read and rich in advice.