By Thomas M. O’Toole, Ph.D.
Many attorneys and academics love to debate when cases are won or lost. Some argue that cases are won or lost in jury selection. Others point to opening statements. Research has yet to offer a definitive answer, mainly because the answer is that it is a little bit of everything. However, cross-examination rarely gets mention in the debate. Cross-examination has long been the land of lost opportunities for attorneys, particularly defense attorneys. There is so much that can be accomplished in cross-examination, yet it rarely receives the necessary pre-planning that it requires. Sure, attorneys outline the key areas of questioning, but little attention is given to cross-examination in terms of the art of presentation to the jurors. As evidence of this, in all of the shadow juries I have conducted over my career, the most common complaint from shadow jurors each day after trial is that attorneys lacked organization and clarity in their cross-examinations. This left the shadow jurors struggling to understand not only what was actually relevant, but why it was relevant. This makes the information less memorable and less likely to exert influence in deliberations. Relevance is not always clear to jurors, even though it may feel painfully obvious to the attorneys who have spent months or years in the trenches of discovery working to understand every facet of the case. Consequently, attorneys need to give greater attention to the important role of cross-examination at trial. Here are five reasons a good cross-examination is better than a great direct-examination.
1. Jurors expect your friendly witnesses to say friendly things. Jurors understand the variety of motives at play with witnesses at trial. They expect the plaintiff and friends, associates, or hired experts of the plaintiff to say things that are favorable for the plaintiff and they expect the defendant’s representatives and experts to say things that are favorable for the defense. Research in persuasion has shown that people are less likely to be persuaded when they believe someone is trying to persuade them. Consequently, direct testimony is naturally less persuasive than cross-examination testimony. Someone might counter-argue that a good direct examination can generate tremendous sympathy or likeability for a party, but those traits are not controlling of the deliberative environment and can often be counter-productive by focusing the discussion in deliberations on your client rather than on the opposition, which will be discussed in more detail in another point.
2. Unexpected admissions create dramatic and memorable moments. Jurors need interesting moments at trial and what interests the attorneys rarely interests the jurors. Instead, they need dramatic moments. These moments capture their attention and their imaginations. It follows from the prior point that adverse admissions in cross-examination violate jurors’ expectations. In academia, there is a theory called Expectancy Violations Theory and research shows that violations of expectations grab attention and result in increased engagement with the information as people try to make sense of why their expectations were violated and what it means.
3. Unexpected admissions carry greater weight. When jurors sense bias on the part of a witness, they are less likely to accept that witness’s testimony. Consequently, the expectation that friendly witnesses will say friendly things, in many ways, undercuts the credibility of those friendly things. When trying to make sense of all of the complex and competing information at trial, jurors look for neutral or objective sources of information. For example, in a case involving an automobile accident, the testimony of the police officer carries tremendous weight because he or she has “no dog in the fight.” Cross-examination can have just as much, if not more, impact in this way. When an adverse witness says something that goes against what jurors believe he or she should be motivated to say, it has tremendous credibility. Jurors are quick to assume it is true. Research in Expectancy Violations Theory has demonstrated that people attribute much greater significance to information that violates their expectations.
4. Cross-examination shifts the focus. A verdict is a product of what jurors choose to focus on and talk about during deliberations.If jurors are talking about one thing, they are not talking about something else. Attorneys rarely, if ever, want the focus on their clients. Focus over time is critical. If jurors spend hours or days of deliberation time talking about your client, it will not be hours or days of positive praise. Positive praise does not sustain itself in deliberations. It does not evolve the discussion like criticism does. Consequently, you do not want your client to be the focus of the discussion. This is where cross-examination can be so helpful. A strong cross-examination puts the focus on the other party or on something other than your own client. Furthermore, for all of the reasons previously discussed in this article, a good cross examination can exert greater influence on the focus of deliberations than a direct examination.
5. It allows the defense to tell its story in the plaintiff’s case-in-chief. For defendants, cross-examination is particularly important because it allows the defense to start telling its story in the plaintiff’s case-in-chief. I have often argued that cross-examination is the lost land of storytelling, particularly for defendants. Well-organized, thematic question sets with clear sign-posting can have a significant impact on the way jurors think about the case. To further compound this problem for the plaintiffs, plaintiffs’ attorneys often make poor choices about witness order, which allows the defense to make critical attacks early in the case. For example, the defendants should be elated when opposing counsel chooses to put his or her client on the stand first. This presents a tremendous opportunity for the defense.