This article is excerpted from the book, Cross-Examination: Science and Techniques, by Larry Pozner and Roger Dodd.
For generations, the cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case. Under the newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically, according to Roger Dodd, a national expert on cross-examination techniques.
Constructive cross-examination is a quantum shift from the historical outlook on the central purpose of cross-examination. It is not a technique, rather it is a new perspective on the ability to use cross-examination at trial to teach the cross-examiner’s theory of the case.
The old way: Destructive cross-examination
Historically, cross-examination was a series of techniques designed to challenge the witness’ testimony, including attacks on the witness’ credibility. The primary goal of destructive cross-examination was to attack the witness or the witness’ story whenever and wherever feasible. It was essentially negative or destructive in its outlook. For generations, trial lawyers were schooled in this outlook. The operable phrase was “to attack.” The cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case.
Consequently, the tone of destructive cross-examination was aggressive and negative. The courtroom climate generated by this form of cross-examination was tense. By the end of the cross-examination, someone was going to be damaged, whether it was the witness or the cross-examiner.
Under the former generation of cross-examination, the cross-examiner consciously or unconsciously believed that the critical goal of teaching her theory of the case to the fact finder would be left to her direct examinations. This most critical goal of trial was specifically reserved for direct examination of the cross-examiner’s own witnesses.
What is constructive cross-examination?
Under this newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically: use opposing witnesses to build the cross-examiner’s theory of the case. While the cross-examiner can still challenge opposing witnesses and their story, thus damaging the opponent’s theory of the case, this goal becomes secondary under constructive cross-examination.
This exponential expansion of the function and purpose of cross-examination rewards the cross-examiner with broader, more productive cross-examinations that are at the same time easier and less stressful.
Historically, the lawyer ready to cross examine would ask herself one fundamental question: “Does this particular witness hurt my theory of the case?” If the answer was no, the correct technique was often, “Ask no questions.” Under this new, modern theory of constructive cross-examination, the lawyer must expand her internal inquiry and ask herself two fundamental questions.
The first question remains the same, “Does this particular witness hurt my theory of the case?” Whether the answer is yes or no, a second, more important, question is asked: “Does this witness possess facts that I, the cross-examiner, can use to build, support, or strengthen my theory of the case?” So much more can be accomplished by asking the second question. Cross-examination becomes an opportunity to introduce, support, and reinforce the cross-examiner’s theory of the case. Even when a witness’ testimony presents few or no good areas for attack, the cross-examiner can still search for areas in which the hostile witness can be questioned so as to bring out facts supporting the cross-examiner’s theory of the case. Therefore, the likelihood of asking no questions of the witness on cross-examination has all but been eliminated.
If the answer to both questions asked at the end of direct examination is truly “no,” the cross-examiner may legitimately decline to cross examine. However, if the answer to both questions is “no,” the cross-examiner must ask herself why this witness was called by the opponent. What did the witness add to her opponent’s theory of the case?
To be clear, destructive cross-examination remains an available and necessary component of cross-examination. However, these attacks are now secondary in nature. Destructive cross examination is no longer the first and primary option of the cross-examiner. In every aspect of trial – from jury selection through opening statements, direct examinations, cross-examinations, and closing arguments – the trial advocate focuses on teaching her theory of the case to the fact finder. The aim from beginning to end is to educate the fact finder on that lawyer’s theory of the case. This singular focus provides fact finders the necessary facts upon which they can build an understanding that supports the lawyer’s theory of the case.