Litigation

Cross-Examination at Trial: Just Say No

By Evan Schaeffer

Cross-examination at trial? Don't do it, especially if you're a new lawyer. That's the advice of one commentary-judge in Litigation magazine, Mark R. McGarry, Jr., who writes, "It must be said that very few new lawyers (almost none) have the skills necessary to succeed at cross-examination."

If you try it, something bad is bound to happen--

• You'll overemphasize the testimony of a witness your opponent has chosen, by allowing a re-telling of his story on cross, then again on direct;
• You'll allow the witness your opponent has chosen to correct any mistakes (or fill any gaps) left over from direct;
• You'll allow the opposing lawyer to correct any mistakes (or fill any gaps) when he continues on redirect;
• You'll make one of those errors that are easy to make on cross, like asking a question "that will ruin the case for you."

According to McGarry, you should think about doing the smart thing, which is to say "No questions," since "you just can't improve your case with your opponent's witness."

Source: "McGarry's Illustrated Forms of Jury Trial for Beginners," by Mark R. McGarry, Jr., The Litigation Manual: Trial, page 123-132.

Related post:  "Another Book to Think About: The Litigation Manual: First Supplement."

Full post as published by The Illinois Trial Practice Blog on August 12, 2008 (boomark / email).