Podcast - The Ten Commandments of Cross-Examination

Dan Small: The late, great Irving Younger, then a professor at Cornell Law School, gave a talk in which he set forth the "Ten Commandments of Cross-Examination." It caught on almost immediately, and it's now widely considered the standard advice on the subject. He was a wonderful speaker. If you've never seen the video or you haven't seen it recently, it's available online. It's wonderful.

Younger's Ten Commandments are as follows:

• No. 1: Be brief.
• No. 2: Ask short questions and use plain words.
• No. 3: Always ask leading questions.
• No. 4: Don't ask a question to which you don't know the answer.
• No. 5: Listen to the witness' answers.
• No. 6: Don't quarrel with the witness.
• No. 7: Don't allow the witness to repeat his direct testimony.
• No. 8: Don't permit the witness to explain his answers.
• No. 9: Don't ask the one question too many.
• No. 10: Save the ultimate point of your cross-examination for your closing argument.

This is all wonderful advice, and you could do worse than to follow it strictly. However, some of these commandments are more important than others, and some should be read with a bit of flexibility. Let's go through them each just briefly.

The first commandment: Be brief. This is another way of saying be economical so people will listen and not grow impatient. And remember that cross-examination is dangerous territory for both sides. So don't spend any more time on it than necessary. Even so, not every cross-examination will be brief. Perhaps this would be better phrased as, "Don't spend a moment longer than necessary."

Second commandment: Ask short questions and use plain words. You're trying to persuade the jury, not to show off, not to talk to a bunch of MIT professors. Use plain, ordinary words in short, simple questions. Anything else risks losing the jury or, worse, turning them against you.

Third commandment: Always ask leading questions. This should be obvious, at least as a general rule. Asking a hostile witness an open-ended question usually invites disaster. Still, a surprising number of lawyers do it. Sometimes they're so unhappy afterward that they turn around and ask that the answer be struck, even though it's an answer in direct response to their own stupid question. Leading questions are pretty much the only means you have to control the witness and take them where you want to go. Having said that, in rare circumstances a non-leading question can be quite powerful. To give a famous example, in the courtroom scene in To Kill a Mockingbird, Atticus Finch asks the accuser, the purported rape victim, why don't you tell us what really happened? But don't try that unless you're 100 percent sure it will work.

Fourth commandment: Don't ask a question to which you don't know the answer. Cross-examination is not a fishing expedition. It is extremely dangerous to toss out a question without knowing what the witness will say. Unfortunately, sometimes you have no choice. In those instances, if you pick your spots carefully, you can minimize the damage.

Fifth commandment: Listen, listen, listen. Listen to the witness' answers. Even though you think you know what the witness is going to say, it doesn't always go the way you planned. You'd be surprised how often lawyers seem to ignore helpful testimony because they're so caught up in reading their notes or getting ready for their next question or whatever the heck it is they're doing. Don't just talk. Listen.

Sixth commandment: Don't quarrel with the witness. This is not a debate. And if it becomes one, you will likely lose. Don't start down that path. If your questions are truly short, simple and clear, they should leave no room for debate. If the witness tries to quarrel with you anyway, don't engage. Just press your question.

Seventh commandment: Don't allow the witness to repeat his direct testimony. This is good advice, but if you follow it too rigorously, you may soon be violating the sixth commandment. This might be rephrased as, "Don't ask questions or permit the witness simply to repeat his direct testimony." Some lawyers seem to think that repeating what the witness said with a sarcastic or incredulous tone of voice is an effective method of persuasion. It isn't, and may well make matters worse. Don't do it.

Eighth commandment: Don't permit the witness to explain his answers. This is tricky. You don't want to interrupt the witness and risk looking like a bully, but you shouldn't invite the witness to provide an unhelpful explanation. Keep your questions short and keep the focus on your questions.

Ninth commandment: Don't ask the one question too many. Don't get greedy. Ask the factual questions that you know you can get the right answers to and that lead to the conclusion you want, and then stop.

Tenth commandment: Save the ultimate point of your cross for closing argument. This doesn't mean that the point of your cross should be obscure or unclear. Ideally, the jury should be able to grasp the point without further explanation, but don't try to make your closing argument in your cross-examination or underscore the point of your cross with a single, triumphant question. It's one more thing that just won't work.

Like the original Ten Commandments, the Ten Commandments of Cross-Examination provide an excellent foundation. Read with a little flexibility and applied with a little focus, they will set you up for a successful cross-examination. Thank you, Irving Younger.