Organizing the cross, Part 1

 Posted By: je froilan m. clerigo

As in all endeavors, planning is essential in cross-examination; if we fail to plan, we plan to fail.

How do we plan? First, set the objectives. Start at the end. Imagine the memorandum you will write at the end of the case. What will you be writing about the testimony of this witness when he was cross-examined? That he testified inconsistently and therefore should not be believed by the court? Then our objective is to destroy either his story or his credibility, or much better, both.

That this witness even strengthened our case because of the admissions he made during the cross? Then our objective is to make him admit the elements of our own case.

That this witness did not hurt our case at all? Then, our objective is to make the judge aware that this witness did not testify against us at all.

Then we plan how we will question him. Do we have documents that we can impeach him with, perhaps a letter, report, or memo which he wrote which says things contrary to what he said during the direct examination? Or, could we ask questions to demonstrate that his testimony was so clearly contradictory to the natural course of events that it is simply not credible?

Or, can we question him about the actions that he took after the contract was signed which show that he accepted benefits under it, making him admit to the validity of the contract he is trying to avoid?

Setting the objectives actually forces us to anticipate the questions we will ask of the witness.

Tomorrow will be part 2 of organizing the cross.