CROSS-EXAMINATION: ART AND SCIENCE

F. LEE BAILEY

I. INTRODUCTION: The use of cross-examination in courts utilizing the rules

and procedures of Anglo-American Jurisprudence began hundreds of years ago.
Dubbed both an Art and a Science, good cross-examination in fact partakes of
both. In its scientific aspects, a well structured cross-examination, while remaining
ever flexible and “light on the balls of the feet” nonetheless is grounded in
predictable, repeatable phenomena. There are rules and principles to be learned, to
be sure, and guidelines at every bend in the road, but the flair and sometimes the
flourish brought to the task by the individual conducting the cross-examination is
personal, and much tinted by the habits and proclivities of that individual. The
demeanor of some cross-examiners is business-like and surgical, even stern, while
others wear a smile throughout the process and lull the witness into the mistaken
notion that he is among friends, even while his credibility is being quietly and
subtly battered.
Years ago, when trials in the local courthouse were a principal form of
community entertainment, and most juries lacked a high-school education,
counsel’s command of what was often referred to as “The King’s English” was his
principal weapon, both for cross-examining witnesses and for attempting to
mesmerize the jury with pure persuasion at the end of the case. Final arguments
could last for days, and involve the reading of long passages from the Bible, an
encyclopedia, or any other compendium which was thought to buttress one’s grand
style of eloquence.
These speakers were described as being of the “Chataqua Circuit” and had
great stamina as they rolled out their arguments, often in stentorian tones. This
speaking style influenced their use of the language during cross-examination.
However, as one quickly realizes while reading actual witness cross-examinations
such as those found in Francis L. Wellman’s all-time 1903 classic, “The Art of
Cross-examination”, in modern times much of what was then acceptable conduct
would now likely be brought up on a short leash by the trial judge. Wellman’s
questioning could be rambling, argumentative and even abusive, but it was
nonetheless brilliant.
A transitional figure in the world of jury trials was another New Yorker,
Lloyd Paul Stryker, author of “The Art of Advocacy”, 1950. Stryker was
convinced that American trial lawyers seldom achieved the high levels of
competence in the courtroom that such a profound responsibility deserved, and
strenuously argued that this country should emulate England, and create a divided
Bar wherein only post law school trained “Barristers” would be permitted to try
major cases. While his wish never much got off the ground, he did contribute
some excellent examples of cross-examination set forth in the two chapters
devoted to that subject. While Stryker’s manner when putting questions was
somewhat modulated as against the “Chataqua” crowd, some of these would
nonetheless draw spirited objections today.
In the early 1950's, Edward Bennett Williams arrived on the trial scene with a
trial practice based in Washington. He got his initial experience defending public
transit cases, and quickly won the respect of the Trial Bar, as well as prominent
clients. He initiated the notion that thorough preparation of the facts was the sine
qua non of good trial performance, and although he was a powerful, even superb
speaker, his ability to dismantle adverse witnesses soon carried him to the top shelf
of the profession. When asked how he was able to sometimes seem to “...pull a
rabbit out of a hat..” during trial, he responded:
“You bring fifty hats and fifty rabbits, and you get very damned lucky!”
If that was really his formula, he was an uncommonly lucky lawyer.
While there are some law schools that offer specialized training in advocacy and
grant an L.L.M. in that specialty, none have been able to offer the “apprentice”
component which is the backbone of the training regimen at the Inns of Court in
London, where young lawyers are weaned into Barristers, with much of their
learning deriving from actual time in court, as second or third chair. That being the
case, American trial lawyers are left pretty much to their own devices in polishing
themselves and their talents to the point where they can bestride the well of the
courtroom with easy confidence and well-honed skills. The protocols described
below are one way to approach this formidable undertaking.

II. COMMAND OF THE LANGUAGE: One of the most important essentials

making up the complex creature that is a top-shelf cross-examiner is the ability to
manipulate the English language in a manner that will draw - and sometimes
almost force - favorable testimony from unfriendly witnesses. This requires
precision in the choice of words, and the manner of their delivery in question form.
To improve one’s ability in this arena, the following points are relevant:
A. Training one’s voice to have a pleasant, but dominant, timbre and
resonance. A whiny, grating, or monotone manner of speech puts listeners
off, including those that sit in jury boxes.
B. Taking care to keep the volume of your voice up so that your words will
be comfortably audible without the listener needing to cup an ear.
C. Enunciating your words clearly. When a jury cannot understand all of
what you say because you are racing, slurring or mumbling your speech, it
will be likely be sympathetic to a witness who expresses difficulty in
comprehending your questions.
 D. Except perhaps in very rural settings, avoid folksy dialogue which seems
to “chat up” the witness or jury. Jurors expect highly regarded trial lawyers
to be both courteous and professional, but not back-slappers.
E. At the other end of the spectrum, avoid also any tendency to be
bombastic or pompous. Most adults will see quickly through a demeanor of
this sort, and feel greatly underwhelmed by the speaker.
F. Eschew absolutely the Defensive Interjection. These range from
annoying to offensive. They act as ugly stains on any speech. “Ah”, “Er”
and similar verbal pauses are a signal that you are buying time trying to
figure out what to say next. Much more sinful are “y’know”, a speech
disease suffered by most professional athletes and many others, and the
nadir of the genre, “like”; some speakers cannot resist using this nonsensical
word several times in a sentence. Unless used to indicate an affection or
preference, or a similarity, “like” is simply grating. Learn - train yourself -
to ask questions and articulate assertions without any of these warts popping
up.
G. While it is good to demonstrate a wide-ranging vocabulary, the
deliberate use of an abundance of “fifty-cent” words is pedantic. Choose
words at the upper end of the quality scale, and if a word that you use does
seem off-beat or upscale, find a way to translate it. Using words a listener
doesn’t fully understand can be an embarrassment to the listener. An
exception occurs when an expert is being cross-examined. You need to
know a lot about his or her special vocabulary when formulating questions.
H. As one means of improving your level of speech quality, listen carefully
to the presentations of television network news anchors, and watch their
demeanor and facial expressions. Albeit they are often reading from tele-
prompters, their use of the language is normally at a high level.

III. EXPANDING THE MEMORY: Just as important as the ability to

communicate effectively is the use of memory. Cross-examiners cannot come to
bat on crutches, and still be effective. The weapons to be used in cross-examining
a witness should be in one’s head and at the ready, not on notes, outlines, or even
cue cards. The anatomy and mechanics of human memory has been a hot item on
the science front for the past year or two, and some of the instructive literature -
both written and on video - is very informative. Trial lawyers need to keep abreast
of this subject, because the best trial lawyers inventory the material they need
between their ears, and keep their eyes at all times on the witness. Witnesses
generally disclose distress caused by cross-examination questions in their eyes,
substantially before their voices begin to rattle.
A. There are several different kinds of memory, and they need to be
understood in order that they be effectively managed. They are:
1. Short term or “working” memory. This is where moment to
moment perceptions from any of the five senses first enter the brain.
If they are then pushed through the “gate” into long-term memory,
they can be archived and retrieved, unless they are allowed to fade.
Working memory does not have much capacity. Most adults of
medium intelligence can retain only about seven numerical digits,
unless they are specially trained to hold more - much more.
2. Long term memory, the archive. Until recently, neuro-scientists
thought that long term memory had a finite capacity. That is no
longer the case. It has yet to be demonstrated that someone has “run
out of space”. Pack away all the trivia you like. Long term memory
comes in three flavors:
(a) Rote memory, also called “brute memory”. This stuff - the
alphabet, the multiplication tables, the periodic tables in
chemistry - has to be force fed, generally by reviewing it over
and over again until it sticks. A quarterback may have written
reminders on the inside of his non-throwing wrist, but his team
mates have to keep the plays in their heads. Rote memory
comes into play in cross-examination when counsel literally
memorizes lines from prior testimony, or from a document,
enabling him or her to hurl them at a witness while keeping
their eyes locked.
(b) Semantic memory. This the habitual stuff that accumulates
over the years and takes root. You recognize your home, office,
school, or significant other without having to pull images
forward from long-term memory. Both counsel and the witness
will rely on semantic memory during a cross-examination, but
when a witness’ declarations stretch too far from the ordinary
and usual, he may need a workout as to his credibility.
© Episodic memory. This is the foundation from which
litigation often grows, a happening of some kind, an event or
“episode”. Disagreements as to which witness saw, heard, or
smelled what, and when, become clashes which are ultimately
handed to jurors to sort out. They are much of the raison d’être
of cross-examination: testing and contrasting the differences in
witness’ tales, then urging the credibility of those which most
help your case. Retrieving one’s recollection of past episodes is
the challenge here, and the capability of human’s to perform
 this feat varies in accuracy across the spectrum. This process is
loaded with fallibilities, from the witness’ original perception,
through his storage and later retrieval of that perception, to the
word-pictures he or she tries to create to transfer that memory
to the jurors. At every stage in this process, errors range from
minor to catastrophic. How many innocent prisoners have been
found on death row in America alone, victims of the worst kind
of evidence, eyewitness identification.
3. Exercising one’s memory. Memories do not expand and increase
speed by osmosis, anymore than Tom Brady and Aaron Rogers
suddenly pop upon the scene each September, limber, fit, and ready to
trek on to the Super Bowl. They work very hard on each facet of their
talents and skills to stay at the vanguard of the profession. Top-flight
trial lawyers need to emulate this sort of discipline. There are many
ways to expand the number of things one can carry in his or her head
at any given time, but that takes regular exercise. Any game of
intellect, whether it be bridge, chess, or scrabble helps. So do cross-
word puzzles, anagrams, and other challenges to what Agatha
Christie’s Belgian detective, Hercule Poirot would call “...the little
grey cells...”. Even video games, where speed is an usually an
important component of success, are good training, for speed is a vital
arrow in a good cross-examiner’s quiver. Forcing names and
telephone numbers into long-term memory, and using tricks of
association to enable their retrieval, is de rigeur in memory training.
Sitting through the instructive sessions of the many good video lecture
programs available is time well spent. The ageless quiz show
Jeopardy is good drill, requiring recall memory retrieval, as opposed
to the easier form: recognition (e.g., multiple choice) One serious
caution, however: as Smartphones become more prolific and more
capable, humans tend to let their memories shrink and store
everything on the phone.. For cross-examiners, this is akin to the
death rattle. Don’t go that way.

IV. INVESTIGATION & PREPARATION: This topic, including a segment

on polygraph testing, is thoroughly covered in our book, Excellence In Cross-
Examination. It is paired with a careful review, from a “street” perspective, of the
Federal Rules of Evidence. This is not a subject from which one can clip a small
snippet and throw it into the mix. I intend to say a few words about this most
essential element of cross-examination, but will not have the time to delve deeply.
V. PREPARING TO CONFRONT THE WITNESS:
A. The tools. As more and more trial lawyers are learning, the cyber world
of computer searches can make the life of the advocate much easier, and the
presentation of evidence - including cross-examination - more speedy and
seamless. Although this digital world changes almost faster than one can
track it, it is now both feasible and convenient to carry with you - in a
package (an iPad, Surface, or similar tablet) weighing less than two pounds -
all of the cases, including virtually all of the evidence (excluding real
objects), which are calendared for the next six months. Rolling huge cartons
of paper, or having a junior do it, to and from the courtroom for each day of
trial, is no longer necessary. Among a number of software programs
available to trial lawyers, two seem well-worth a tryout: TrialPad and
TranscriptPad from “Lit” software, offer well-designed, very useful
programs for the storage of one’s evidence, well organized and easy to
retrieve and display. With a prodigious amount of memory, a tablet with
TrialPad can hold an enormous amount of material, including graphics,
videos, and a slew of documents. TranscriptPad, its sister program, accepts
all kinds of transcripts - depositions, court testimony, any Q. and A.
compiled by a court reporter, so long as it is in “.txt” format. The transcript
can be flagged, highlighted, and linked to other documents or exhibits, in a
manner only limited by counsel’s imagination. I espouse these tools because
quite apart from saving wear and tear on aging backs, they enable cross-
examination to proceed with a high rate of speed. A reasonable and
relentless degree of alacrity is an essential element of good cross-
examination.
B. The arena. In order to make the most of these tools, the configuration of
the courtroom is important. Most courts in modern times have basic audio-
visual equipment available, either on hand or with some notice of need.
Projectors and movie screens are age-old devices, but properly placed and
utilized do a satisfactory job. More convenient by far are television screens.
The setup in the courtroom during the O.J. Simpson trial was close to ideal.
A large segment of the wall behind and to the right of the witness box
displayed images that the lawyers, jurors and public could see, and read
from a distance. The judge and the witness, who were facing away from that
wall, had individual repeater screens in front of them. By and large the
arrangement worked smoothly. When a witness was questioned about an
image or video being displayed, everyone was looking at the same thing, a
part of the screen usually highlighted with a laser pointer. Any A/V
arrangement that obviates the need to show counsel, the witness, the court,
and then the jurors by means of a pass-around, is acceptable. But do display
 your wares so all can see and understand at once. Such a system is also
helpful in keeping the jury’s attention. Needless to say, before engaging in
this sort of presentation, some serious preparation and evidence scheduling,
including pre-witness rulings on admissibility. is generally mandatory.

VI. THE BATTLE: Armed with a formidable vocabulary, a clear and

commanding resonant (or dulcet and becoming) voice, and a handy segment of
long term memory chock full of case facts, it is time to dismantle the testimony of
those witnesses of the opponent who - if believed in substance - can push your case
underwater. These are the enemy, and the fewer that need attacking, the better.
There are many principles of cross-examination, and a few examples of guidance
which might be called rules, but it remains a slippery business. Training, books
and lectures are all helpful, but no substitute for courtroom observation, graduating
into participation. Years back, when some of my elder colleagues of the Chataqua
breed were handling all the front page cases, most of them hewed to the view that
cross-examination could not really be taught except by “carrying the bag for the
lead counsel”. They maintained that you best learned to cross-examine the same
way you most quickly learned to swim: by being thrown out of a boat. Most senior
advocates have attenuated such tenets, and concede that out-of-court instruction
can provide a healthy foundation. Here are some basic pieces of advice that most
top shelf trial lawyers will support:
A. Don’t. Many witnesses in the trial of a case are not pivotal, and even
where they may have erred on a fact or two, there is no need to cross-
examine them. In some instances a few friendly questions may be warranted
to clarify a point, or to cast it in a more neutral light, but don’t attack unless
you have to.
B. Watch the witness. One often sees a trial lawyer taking copious notes
while an opposing witness is undergoing direct examination. This is fine,
unless that lawyer is the one who will be the cross-examiner. Then it is a
bad idea. The human animal, unless he or she is literally blind, signals with
the eyes constantly, and often involuntarily. One who is stressed by the
question under discussion - even during direct examination - will usually
show it by studying the floor, moving the eyes furtively, or just plain
looking frightened. If your eyes are on a sheet of foolscap, you will miss
these signals, which are invaluable to a cross-examiner.
C. Extract favorable facts. At the outset of a cross-examination, especially
one which is likely to get bloody down the road, draw from the witness any
facts within his knowledge which are favorable to your side of the case.
Even an overtly hostile witness, such as an opposing party, is likely to have
some testimony which is helpful.
D. Pin the witness down, tightly. It is much easier to catch someone,
especially one who is agile, in a closed room where the doors are shut and
locked. A witness needs to be committed to all of the things he did not
perceive with his senses, before he is handed a conflict. Witnesses who
appear to be trapped in a contradiction will explain, or “wiggle” their way
out if they can, especially experienced witnesses such as law enforcement
officers or experts. The exit avenues to elude contradictions can be
foreclosed in advance, but it is painstaking, detailed work. Do it.
E. Establish external contradictions first. An effective cross-examination
will set the witness at odds with other facts in the case, the more the better.
If his story is inconsistent with physical evidence, such as laboratory results
of photographs, establish the differences definitively. If the story is
inconsistent with the testimony of other witnesses - already called or to be
called - face the witness with the variances, and if he wavers, ask whether or
not the contradiction causes him to reassess his own recollection. Almost
any response to this kind of question can be damaging to the witness’
credibility.
F. Establish internal contradictions firmly. When cross-examining a
witness with respect to his or her own prior utterances, whether they be oral
or written statements, or formal transcripts from depositions or prior
testimony, get a commitment. It is best to do this by memorizing in advance
those lines of a declaration which are most important to your case, and
presenting them to the witness without reference to any piece of paper even
close to your hand. This invites the witness to hedge, or backwater. When
he has dug a deep enough hole, project the statement in issue on the screen
and ask, “Is this what you said, or did the court reporter make a mistake?”
The witness’ facial expression hard on the heels of such a question will often
speak volumes. Bear in mind, that generally the most effective
impeachment of a witness is proof of some form of prior inconsistent
statement.
G. Stop when you’re done. Too often counsel will find himself or herself
having such a good time after scoring a few hits on a witness that the
examination tapers off, and ends not with a bang, but a whimper. When you
are clearly ahead, it may well be time to quit. Learning when to sit down,
hopefully after a helpful admission of some sort, is part of growing from
lawyer to trial lawyer. Keep at it, and it will come.
V. CONCLUSION: This outline, and the lecture which will accompany it,
are not expected to create overnight sensations in the cross-examination
skills of trial lawyers. It should be viewed as a paradigm and road map. To
become a respected cross-examiner, like most worthy goals in life, a lot of
hard work and drill is necessary. And it is not a goal for which every lawyer
should strive. Over centuries, several personality components have emerged
as well-suited to the development of these skills. We call them CD2, which
stands for CONFIDENCE, DISCIPLINE, and DETERMINATION.
A. Confidence: Some people seem to be born with a high degree of
self-confidence, but in most - even the gifted - it must be developed.
Almost any human exercise which depends to a large degree on
personal self-reliance helps to develop confidence. It is, essentially, a
state of mind wherein one believes that he or she can accomplish a
targeted goal. Each experience which goes well helps to boost
confidence; those which end badly may deflate one and cause self-
doubt, or they may prompt a resolve to get back up off the mat and
sally forth into the breach once again.
B. Discipline: Sea Captains, pilots and neurosurgeons fare best when
they follow protocols and plans - complete with check-lists - in
orderly fashion, commonly described as discipline. Discipline is also
the arch-enemy of the quitter’s surrender; “this exercise is just too
damned difficult.” Keep at it, and you will get it, particularly when
banking facts into easily retrievable long-term memory is concerned.
C. Determination: This is the “Don’t take NO for an answer”, and
“Never, never give in!” attitude which we ordinarily describe as
perseverance. In any human endeavor, early success is often elusive.
Although a little hoary, the phrase “...if at first you don’t succeed, try,
try again...” still has good legs, and should be a mantra when things
seem to be off-track.
Finally, the United States if fortunate to have many, many good trial judges
in its judicial ranks, and trial lawyers should not be shy about seeking a
thoughtful critique from the bench, once jurisdiction has moved on (by
acquittal, dismissal, a terminal jury verdict, or a perfected appeal). My
partner for many years, now an admired trial judge of the Superior Court in
Massachusetts for more than ten years, had this to say in the section of our
book, Excellence in Cross-Examination (West Publishing 2014):
“It is a lawyer’s greatest mistake, however, and often made at the
expense of the next client, that a lawyer that succeeds at trial because
of the overwhelming weight of the evidence not fool himself or herself
that future success will follow without the proper honing of cross-
examination skills and preparation.”

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