I just heard a great interview in the NITA podcast, May the Record Reflect. The episode featured an interview of veteran Delaware trial lawyer Steve Wood. In it, Wood discusses the top ten tips that make a difference in the courtroom. I was particularly impressed with his tips about cross examination.
Wood defines his rules of cross examination as “the four corners of cross examination”. As a prompt, he visualizes these rules as corners of a medieval castle, and reminds himself of the danger lurking outside if he strays from the four corners of the castle. The goal is to remain within the castle.
Wood’s Four Corners of Cross:
Rule 1: Only ask leading questions. Avoid the open ended questions that you would ask in direct examination (e.g. who?...what?...why? questions).
Rule 2: Only ask questions seeking “facts”. When applied together, Rules 1 and 2 require leading questions soliciting answers to facts (distinguished from questions seeking agreement with your conclusions). Wood observes that when the witness doesn’t agree with the fact question, you can impeach the witness. In contrast, if you ask a question seeking agreement with a conclusion, an argument may ensue, which empowers the witness. Better questions avoid that.
Rule 3: Ask the fact questions in a logical sequence toward a definable goal. The goal is the point you want to argue in the closing. If you define your goal in advance (which also can be described as your conclusion), you can remind yourself to avoid argumentative questions relating to that conclusion.
Rule 4: Finally, make sure the goal is reasonable. Say it out loud to yourself and analyze its viability. If the goal is too much of a stretch, refine it to a more modest one, and formulate your fact questions towards that end.
Stay in the Fortress
Wood reminds himself at the beginning of every cross that if he stays within the four corners, he will survive the cross and the result will be no worse than “pretty good”. This four corner approach is simple and elegant. It can be used with lay and expert witnesses alike. Try it the next time you cross a witness. “Pretty good” ain’t a bad result when cross examining an adverse witness or expert.
Listen to the entire interview and the other nine tips here.