Personal Injury Cross Examination
Brien Roche
There are lots of rules that are applicable to cross-examination.
Rules can be good. However as is so often the case, rules are swallowed up by the exceptions. If they’re not swallowed up by the exceptions then they are forgotten in the heat of battle.
Personal Injury Cross Examination: Preparing
The rules which have been memorialized by legal superstars such as Younger, McElhany, Posner and others provide a great framework for preparing your cross-examination. The emphasis is on preparing. Preparing means just that. It means knowing the facts, knowing the documents and knowing the witnesses.
Personal Injury Cross Examination-The goals
The goals of cross-examination are:
1. Get the witness to agree with you on at least one issue.
2. Getting out “the rest of the story” as Paul Harvey said. The famous radio commentator used to begin and end many of his broadcasts with “the rest of the story”. That’s exactly what you should be doing on cross-examination. Make sure the jury hears the story you want to get out and not the limited story presented on direct.
3. Undermine or discredit the witness to the point where the factfinder doesn’t believe the witness.
4. Winning your case. Some people say that cases are won or lost in cross-examination. That may be more the case in criminal matters than civil. However cross frequently is a better mode of proof than is direct examination.
Personal Injury Cross Examination-The scope
How important cross-examination is has been recognized by many courts. Perhaps most importantly by the U.S. Supreme Court in Alford v. U.S., 282 U.S. 687, (1931).
The scope of cross-examination is defined in U.S. courts by the scope of the direct. That is the so-called “American Rule”. That American Rule is that the witness may only be cross-examined on matters included within the scope of the direct. Houghton v. Jones, 1 Wall (U.S.) 702, 1863. The so-called “English Rule” is that a party may be cross-examined on any issue involved in the case. Continental Casualty Co. v. Thomas, 463 S.W.2d 501 (Tex Civ App 1971). Both the federal courts and Virginia courts have moved towards the English rule. The trial judge has discretion to expand the scope of cross-examination to additional matters as if on direct examination. Va. Rule 2:611(b)(i), FRE 611(b).
Personal Injury Cross Examination-The Rules
The rules that follow are not so much rules as they are points to consider in preparing and conducting your cross. These “rules” should be used in conjunction with the other pages on this site dealing with cross-examination: cross-examining experts, cross-examining defense medical experts, cross-examining brain injury experts, standard of care.
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Before You Get Started
1. Caring about the subject matter. You have probably been cross-examined in your lifetime. It may not still be in your memory. You probably at some point were cross-examined by your mother. She was the best cross-examiner you ever confronted. She loved you. Probably at some point you got into some situation where she was determined to get to the bottom of it. She did that by cross-examining you. Her cross-examination was piercing. It made you very uncomfortable. However at the end she had gotten what she wanted out of you. That’s the type of caring attitude to have in conducting your cross-examination.
2. If the witness did not hurt you, you need to consider staying seated. Balance this with goal #4 above.
3. If this is true, then what else must be true? Ask yourself if you feel pretty confident that a witness has done or said something that he probably doesn’t want brought out. Then ask yourself not only why but what else have they done that they don’t want brought out on cross-examination.
Mantra
4. Find the witness’ mantra. Some witnesses have a mantra. A mantra is simply a theme to their thought process. If you can find that, then you can probably turn it against them.
5. Set your own mantra. That mantra should probably be governed by what local attorney, Pat Malone calls “the rules of the road”. In his excellent book by that name and also his other book on cross-examination, he defines what he means by the rules of the road. They should govern your case. They must be clear, not arguable, important and violated by the opposing party. Once you have those rules identified, they become both the foundation and the focus of your cross-examination.
Know The Angles
6. Background. Know the background of the witness before you begin your cross. Whether the witness is an expert or a lay witness, the internet is a vast reservoir of data. Use it. For some tips on where to go to mine this data, go to https://www.brienrochelaw.com/blog/personal-injury-experts.
7. Recognize that the witness is anxious. Exploit that anxiety early on. Confront the witness with questions that throw the witness off balance.
8. Know all of the excuses/angles that can be played by the witness. The only way that you know this is by knowing everything that the witness has said in the past about this subject matter. In a civil case you probably have taken the deposition of the witness. In a criminal case you may not have that benefit.
Moving Through The Cross
9. Slow and Steady. Go slow. Let it sink into the jury.
10. Use Pauses Effectively. Sometimes a pause can be used to emphasize what was just said.
11. Primacy and Recency. People remember what they hear first and last. What is in the middle tends to get lost. If there is something that you want to downplay, then perhaps the place to put it is in the middle. The rule of primacy is to get the best stuff out early. Save the second-best stuff for the end. I say get straight to the point. After you have name, address, social and DOB get straight to the point. Close with something important.
12. Logical Progression. The subject matter of your cross should have a logical progression.
13. Chapter Method and Transition. Larry Posner endorses what he calls “the chapter method”. The chapter method divides your topics into discreet “chapters”. They should be narrow and well-defined. When you move to a chapter, tell the jury that you are doing that before you do it. Your cross-examination of the witness may be brilliant from a legal point of view. However if you don’t make sure that the jury is coming with you, you have lost them. Call, or contact us for a free consult.
14. Play Nice. Don’t get mad, raise your voice, pound the lectern or accuse the witness of lying. If you want to get mean, then you want to save that for the end.
15. Use Exhibits. Use of exhibits in cross-examination can be very effective. A good example of this appears in the movie entitled My Cousin Vinnie.
Control
16. Lead the witness. The mere fact that a question can be answered with a yes or a no does not mean that it’s leading. Black’s Law Dictionary defines a leading question as one which instructs the witness how to answer or puts into his mouth words to be echoed back. That’s probably the best definition. Questions that begin with who, what, when, where, why or how are probably not leading. The rule on leading applies across the board as to all witnesses who are adverse. This is true whether they’re appearing on direct or cross.
Don’t Lose The Jury
Leading questions may be great. They create the impression that you’re in charge. However you may not be. The jury probably finds your leading questions to be boring. You’re putting them to sleep. It removes any surprise element. Also they do not allow the person that they want to hear from to say anything. The judge may think you’re doing a great job. The jury may think you’re a horse’s ass. In addition leading questions take away any chance of the witness contradicting himself.
For instance assume an opposing life care planner is on the stand. You may be tempted to simply ask “Isn’t it true that you have no real experience in working with paralyzed people outside of litigation?” Wouldn’t it be better to ask how many paralyzed people they have worked with to line up medical or rehab care over the last 5 years? In the context of an auto case, you may want to ask, “You’re not supposed to turn left in front of oncoming traffic, unless it’s safe to do so, true?”
It would be better to ask what she was taught in drivers’ ed about turning left in front of oncoming traffic.
17. Lead the jury. You not only are leading the witness but you are leading the jury to the inference/conclusion that you want them to draw.
18. Do not ask a question if you cannot control the answer. You don’t have to know the answer. However you do have to be able to control the answer. What some call the ridiculousness technique may help:
a. If you want an estimate of distance and the witness won’t give any then try the ridiculous: Is it more than one inch? Is it less than one million miles? If they refuse to answer then they qualify as ridiculous.
b. If negligence is clear and they refuse to admit negligence then personalize. See if they will admit they would have done something different in that case. If they say they would have done the same thing then they qualify as ridiculous.
c. The prayerful witness. If the witness tries to ooze niceness by stating she is praying for your client then ask for the client’s complete name. If the witness does not know it then their statement of prayer is false.
Ten Words or Less and Fact Based
19. Your questions must be short (no more than 10 words), no big words, fact-based (one single fact at a time) and designed get a yes or no answer. To get that yes or no answer you need to have done the following:
a. When you depose the witness your questioning should have been thorough. The idea is to get the good, bad and the ugly out of the witness. If in the deposition you got a bad answer, then you need to explore it further. If in the deposition you got a good answer, then you may want to have the witness explain it so that they can’t backpedal on it later.
b. Box the witness in to prevent future slipping and sliding at trial. The best way to lay the groundwork for that is at the beginning of the deposition by having the witness agree to:
i. Don’t answer if you don’t understand the question;
ii. If the question is confusing then ask me to repeat it;
iii. If you need to explain your answer then please go ahead and do so;
iv. Take your time in answering the question; and
v. If you need to take a break after you’ve given an answer then ask me for that and we’ll try to accommodate you.
Know When to Stop
20. If at trial (not deposition) you get a good answer, then as one commentator has said, “Ask to see the witness’ driver’s license”. What that means is change the subject. You’ve gotten the answer you want. You don’t want the witness to change the answer. Therefore change the subject dramatically. Pull the witness entirely away from the statement just made. Call, or contact us for a free consult.
21. Bad Question. If you ask a bad question, admit it. Try another one.
Undermining
22. Contradicting/impeaching the witness. In order to accomplish the goal of undermining or discrediting the witness you may have to engage either in contradiction or impeachment:
a. Contradiction
You may be able to contradict the witness with statements from other witnesses, rules, regulations or physical evidence. Whatever that may be, you must have it readily available. Present it to the witness without delay. Contradiction is different than impeachment. Contradiction means you’re confronting the witness with something that varies from what they have said. That variance may be seen in a statement from another witness. In addition it may be seen in some object. There may be a foundation problem in terms of presenting that other statement or object to the witness. Be prepared to address that foundation issue.
b. Impeachment
The basics of impeaching the witness are foundation, confrontation and follow-up.
You lay the foundation by asking the witness:
Isn’t it true that on December 1, 2009 you gave a deposition?
Your counsel was present for that deposition.
You were under oath.
You were asked questions about the color of the traffic light.
In that deposition on December 1, 2009 when you were asked about the color of the traffic light, you testified differently than what you did today.
Confrontation:
Show the witness the pertinent pages and lines of the manuscript.
Read the question and answer.
That was your testimony on October 15, 2009?
Follow-up:
Immediately tie in the impeachment with an important issue in the case:
You realize this case is all about the color of the traffic light?
c. The Forgetful Witness
We have all confronted the witness with selective memory. Such a witness is fair game for impeachment if you have a prior statement where he did recall the events. This testimony may be admissible under Federal Rule 804(b)(1) or Virginia Rule 2:804(b)(i).
If the witness didn’t hurt you, then you need to consider leaving him alone.
If he did hurt you, then you probably have to probe:
Did you once upon a time have a memory of this event?
Is there a written version of what you recalled? If so, show it.
Did you tell anyone what happened? (Now apply the five W’s and H mentioned below.)
Non-responsiveness
23. The Non-responsive Witness. You have already seen this witness in action either in deposition or otherwise.
Begin your cross-examination with areas that you can agree on with this witness. There must be some.
Your questioning thereafter should consist of short, leading questions using simple words that are fact-based.
That’s easier said than done.
In a custody case, Dad wants to run on about why Mom is not the proper custodian:
You did not attend your oldest son’s graduation on June 23rd?
Prior to that graduation you had not seen your oldest son since May 21st?
On May 21st the police were called to your home by your 12 year-old son?
Further Means of Control
Even with these focused questions, Dad insists on running on. You have several alternatives:
Agree
a. Can we agree my questions will be short and direct and you will answer them?
b. This is my opportunity to cross-examine you. I’m asking that you answer with yes or no answers and your attorney will give you the chance to explain on redirect.
c. Use agree or disagree questions. With this type of questioning, the object of course is to limit the witness’ opportunity to run on by framing your question as to whether he agrees or disagrees with the following.
d. End the question with “…true”. For instance:
“At the time of the collision, you were not looking at the traffic light. True?”
Not “isn’t it true” or “isn’t it so”.
Rephrase
d. “Thank you, Mr. Run-on. I must not have properly phrased that question but my question was…” This can be effective but be prepared for the Court or your opponent to ask that you not interrupt. Also be prepared for the objection from your opponent “asked and answered”. Your retort to such will be “asked but not answered”.
e. Write the question on the blackboard and give the potential answers: “yes”, “no” or I don’t know”.
Pause – After the non-responsive answer, pause and say, “I take that as a “no”.
The Court
f. Ask the “Court to intervene to direct the witness to be responsive to the questions. Some Judges will do so
g The stop sign. We are all conditioned to stop at a stop sign. The hand extended at eye level with a flat opened palm is the universal stop sign. It can be very effective in the courtroom.
Object
h. Interrupt with an objection or a motion to strike or both. If the witness is straying from the question, don’t be afraid to object to the answer as being non-responsive. Also move the court to strike the non-responsive answer. Make sure you are on firm ground or the objection could blow up on you.
Safe and Helpful
24. Safe Harbor. With stormy weather we all covet the safe harbor. In some cases there is no safe harbor. There may be only shoals and reefs. In the red light case mentioned above, the safe harbor is the deposition testimony cited. When the witness on cross tries to explain when and how he saw the color of the traffic light, this deposition is your safe harbor.
Write your safe harbor on top of each page of any notes that you are using for your questions. This reminds you exactly where you can return to.
25. Focus on What Helps You. Spend your time on what helps you. Expand on those facts. Do not spend any time on the stuff that does not help you. So often counsel repeats the harmful stuff from direct. Forget the harmful stuff. Focus on the good stuff. If the witness can help you then bolster the witness’ credentials, foundation and background.
General to Specific
26. Progress from the General to the Specific. The goal is to box the witness in. With an expert witness, going from the general to the specific may mean getting the witness to concede that the role of an expert is to tell the truth. The role is further to disclose to the jury what the witness knows about the subject matter that is relevant. From that general framework you try to lead the witness to more specific issues pertinent to your case.
27. The Witness Asks Counsel a Question. This sometimes happens. Ask the Court for permission for you to answer. That permission is probably not forthcoming. If it is, then take the chance to “kick butt”.
Eye Contact
28. Direct Eye Contact May Hinder Inquiry. Most of us view eye contact with the person that we are speaking to as basic. However forcing eye contact when trying to change someone’s mind may cause the listener to become more stubborn. This is according to an October 2013 article in The Washington Post. The person conducting the study at Harvard University concluded that when you are in a situation that feels confrontational, eye contact puts the other person off. It does not bring them around to your line of thinking. That head-on stare can be the human equivalent of a bull getting ready to charge. When animals make eye contact, it is usually prior to some dominance test.
The researchers found that people tended to be less open-minded and receptive the more the speaker is looking at them in the eye. The study was published in the Journal of Psychological Science. Within The Washington Post article an experienced FBI agent was quoted. He was an expert on body language. He found that agents have more success coaxing info out of people being interviewed when they avoid direct eye contact. The theory being that it was easier to get people to confess by not sitting directly in front of them. That sort of positioning and eye contact is seen as antagonistic. Call, or contact us for a free consult.
The Break
29. Take Advantage of the Break. If the witness on direct brought a file to the witness stand, whether he reviewed it or not, ask the Court for a short break to review the file. Experienced counsel will tell a witness not to take anything to the stand unless she intends to show it to the jury. I am always amazed at the number of witnesses who violate this. Reviewing that file during your five-minute break may prove to be the most brilliant aspect of your cross-examination.
30. Crying. If the witness starts crying on the witness stand then it’s time for a break. Don’t be afraid to ask for one. When the questioning resumes, tell the witness that it’s not your intent to generate tears but these are important questions that need to be answered.
Listen
31. Listen. The witness may be putting gifts out there for the taking.
High Note For The End
32. End on a High Note. With all the other rules that we’ve talked about it’s difficult to end on a high note. You may have used all of your notes early in the cross-examination. In any event, if you’re blessed with a number of high notes, then save one for the end.
Personal Injury Cross Examination: The Surprise Witness
The threshold question that applies universally on cross-examination is: “Do I examine the witness?”
Don’t forget one of the goals of cross-examination: to do what Paul Harvey says, “And now the rest of the story”.
If the witness is a surprise either in terms of her appearance, testimony or both, then you need to have a framework of questions that will aid you in getting out the rest of the story.
Getting Specific
Let’s get specific. Your opponent produces a surprise witness. He testifies that your client, rather than traveling in the same direction as the other vehicle prior to the impact, came out of a parking lot to the right of the traffic flow. Furthermore he says your client improperly entered the other party’s lane. You have no prior sworn or unsworn testimony from this witness. You had no prior knowledge of the witness’ existence. The right objections as to the disclosure of the witness have been overruled. The testimony of the witness is damaging. Indeed it is devastating. If you applied the traditional rules, you probably don’t ask any questions. That may be a tough decision to explain to a client after an adverse verdict. You have to question the witness. The issue is how you proceed.
Five W’s and H
In high school English I had drilled in my head the principles of writing a news article: the five W’s and H.
Who
What
When
Where
Why
How
With these six words you can concoct questions that delve into all areas of human existence.
Your focus needs to be narrow.
Let’s try to apply that focus to the factual scenario stated above. Recognize that the five W’s and H are not going to be applied in any mechanical way. Call, or contact us for a free consult.
WHERE
Where was the Plaintiff’s vehicle when you first saw it?
…did that vehicle go? (Have the witness plot the course of travel on the blackboard or a diagram.)
…was the Defendant’s vehicle when you first saw it?
…did that vehicle go? (Have the witness plot the course of travel on a blackboard or a diagram.)
…were you when you first saw the Plaintiff’s vehicle?
…did you go thereafter? (Have the witness plot the course of travel.)
…were you when you first saw the Defendant’s vehicle?
…did you go thereafter? (Have the witness plot the course of the Defendant’s travel.)
…were you coming from?
…were you going?
WHAT
What was the Plaintiff doing when you first saw her?
…was she looking at?
…did she do each moment thereafter up to the impact?
…was the Defendant doing when you first saw him?
…was he looking at?
…did he do each moment thereafter up to the moment of impact?
WHO
Who did you first talk to about the incident?
…was present?
…else have you spoken with about the impact and give the time and substance of each such statement?
…was the source of all your information? (This foundation should have been laid on direct examination; otherwise the appropriate objection should have been made.)
WHEN
When did you leave your point of origin?
…did you arrive at the approximate scene of the accident?
…were you expected at your destination?
…did you realize there would be an impact?
WHY
Why did you come forward as a witness?
…are you here today? (Subpoena or payment by opposing counsel)
HOW
How do you explain the fact that there is substantial body damage to the left rear of my client’s vehicle when you say he t-boned the other vehicle on the right side?
The five W’s and H are not going to cure an inability on your part to think quickly on your feet. You need to be able to apply these basics to cross-examination and also evaluate many of the rules of cross-examination in order to get to “the rest of the story.”
Reach Out To A Personal Injury Attorney For Your Case
Call, or contact us for a free consult. For more information on personal injury related matters see the other pages on this site.
Also for info on cross-examination see the pages on Wikipedia.