The Ten Commandments of Cross Examination

Timothy A. Pratt, a trial attorney and partner in the firm of Shook, Hardy & Bacon, L.L.P., based in Kansas City, Missouri has written an introduction to cross examination and ‘ten commandments’ that should be followed by any trial lawyer when cross examining. While they were written with the American legal system in mind, you will find that many of the tips that he has provided are also useful for you when you are learning how to cross-examine during the BPTC and later when refining the skill in practice.  As he mentions, these are one of the many skills that a Barrister develops through active advocacy rather than diligent study.

The introduction is excerpted below, followed by a list of the ten commandments and a link to the full article:

Much has been written about the “art” of cross-examination.  Not all of it, though, involves art.  Some of it involves natural talent, but most of it involves hard work.  In truth, three factors combine to create this “artistic” success — personality, presence and persuasion.  These traits are often manifest in the ability to think and react quickly.  But something else is involved as well — something that trial lawyers often hold in short capacity. That something is humility, and the ability to know when to quit.  The art of cross-examination involves all of these traits, and more than a little luck.

This article is intended to provide yet another iteration of the Ten Commandments of cross-examination.[1]  Here is the caveat, however — one does not learn to be good at cross-examination by reading papers.  The successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally.  In this era, when there are too few trials to satisfy so many eager trial lawyers, cross-examination techniques can be practiced in depositions.  The trial lawyer must learn to get the “feel” of a good cross-examination; to develop a personal cadence and style.  The trial lawyer must learn as well to adapt to particular witnesses and different cases.  But he or she learns by doing.  In all this, of course, having some general rules in mind will not hurt. Hence, the “Ten Commandments.”

The Ten Commandments:

  1. Thou Shalt Prepare
  2. Thou Shalt Know Thy Objective
  3. Thou Shalt Take Baby Steps
  4. Thou Shalt Lead the Witness (usually)
  5. Thou Shalt Know Thy Style and Adapt It to the Occasion
  6. Thou Shalt Know When to Quit
  7. Thou Shalt Know What to Take to the Podium
  8. Thou Shalt Know  Thy Audience
  9. Thou Shalt Know the Rules of Evidence
  10. Thou Shalt Know Thy Judge

Link to the Full Article

Photo of Atticus Finch Cross Examining (Copyright What About Clients)

While we may all want to command the respect and authority of Atticus Finch, unfortunately most of us fail to comply with the cardinal rule of cross-examination: preparation

Source: Queen’s Counsel, Law cartoons from the pages of the Times, 9th January 2001

Morshed
Berlin

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