Cross-examination is a key part of any contested trial. Good lawyers—like good song writers—must be good story tellers. Trial lawyers must tell a client’s story within the context and procedures of the trial. The opening statement lays out the story, foreshadowing what is to come. The witnesses and evidence support the story. And the closing statement serves as the “satisfying conclusion.”
By failing to prepare, you are preparing to fail.
When done right, cross-examination can help a lawyer elicit damaging admissions from the opposing party and tell their client’s story. When done wrong, a lawyer can do irreparable damage to their client’s case.
Doing it right requires only one thing: preparation. The lawyer doing the cross-examination must prepare themselves by examining in detail every statement that the witness may have made on the subject in question. Cross-examination questions should be carefully prepared and should not give the witness “wiggle” room to speculate. The goal should be for the cross-examiner to get in and get out.
On the flip side, a good trial attorney will prepare their client for cross-examination by helping them understand and exploit weaknesses in the examiner’s questions.
Cross-examination of Taylor Swift.
A good example of cross-examination gone wrong occurred last week in Taylor Swift’s civil trial in Denver, Colorado. The trial centers around allegations made by Ms. Swift that David Mueller, a Denver area radio host, inappropriately touched her during a June 2013 photo opportunity. Ms. Swift told Mr. Mueller’s employer that he grabbed her butt during the photo opportunity and they fired him.
In 2015, Mr. Mueller sued Ms. Swift claiming that she recklessly ruined his career with the false allegation. Ms. Swift countersued alleging that Mr. Mueller had reached under her dress and grabbed her bottom.
During trial, Ms. Swift was obviously well prepared for the witness stand. During cross-examination, she was able to score several points for her case when the opposing attorney asked some ill-advised questions.
One of Mr. Mueller’s key pieces of evidence was the photo taken during the photo opportunity. Mr. Mueller’s attorney asked Ms. Swift why the photo shows the front of her skirt in place and not lifted up if Mr. Mueller was reaching underneath to grab her butt. Ms. Swift quipped “[b]ecause my ass is located in the back of my body.”
Later, Mr. Mueller’s attorney asked Ms. Swift “how she felt” when Mr. Mueller’s employer fired him after the accusations. Again, she responded well. She explained “I didn’t have a reaction to a strange person I didn’t know losing his job…that was a product of his decisions, not mine.”
Both of these exchanges are great examples of proper preparation. Preparation that paid off. In the first case, Ms. Swift exploited an open-ended question to great effect. In the second, she avoided a victim-blaming question designed to elicit sympathy for Mr. Mueller.
Ms. Swift’s cross-examination helped her tell her story and prevented Mr. Mueller from telling his. We’ll see which side gets its “satisfying conclusion” in the future when the jury returns a verdict.
