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Tuesday, November 08, 2005

Don't Over Control During Cross-Exam -- It's Boring

In his short essay The Ten Commandments of Cross-Examination, Timothy A. Pratt provides his entertaining and informative overview of cross examining witnesses during trial.

Mr. Pratt cautions the trial attorney against over reliance on leading questions to control the witness:

Often, it is best to have the answer come from the mouth of the witness. A lawyer asks these non-leading questions because he or she knows the answer and, if the witness waffles, the witness can be impeached.

The point is not that every question must be leading, but that the expert is never afforded an opportunity to expound on a question of critical importance. When reaching this goal, look for the opportunity to use non-leading questions to break the monotony of repetitive leading questions.

Mr. Pratt also suggests that:

In this era, when there are too few trials to satisfy so many eager trial lawyers, cross-examination techniques can be practiced in depositions.

That's true in both respects.

In any event, loosen control when it is safe and you know what you are doing. Just remember the last time you walked out of a court room looking like a bomb exploded in your face. Remembering that suppressed event will keep you cautious.

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