First Impression
Counsel's attitude and appearance are of the utmost importance in making his cross-examination effective. Because this is the first moment at which you are heard, you must make an impact. You can't afford to be ineffective at that moment. There are many ways of doing it-many right ways and many wrong ways.
Attire
The lawyer's manner of dress should be calculated to impress the jury and witnesses with his dignity, stature, and ability. Generally, conservative attire best accomplishes this. Occasionally a well-established and renowned advocate adopts casual or even sloppy dress as a characteristic or mark of distinction. But for most attorneys flamboyant or sloppy attire serves to impair if not destroy their effectiveness.
If possible, it is a good idea not to wear the same suit on two consecutive days. A change of tie is also desirable. While the quality of the apparel is important in impressing observers, cleanliness and neatness are essential. Thus, shoes should be polished, shirt (prefer ably white) should be clean and freshly ironed, and tie should be neatly knotted.
Distaff attorneys should also give attention to their attire and appearance. The woman lawyer should neither adopt a masculine form of dress nor appear too feminine. The courtroom is not a nightclub or formal dinner party. Tailored or semi-tailored, simple dress and the appearance of efficiency, womanliness, and neatness should prevail.
Attitude
The Folly of Mimicry
The trial lawyer who has read many articles on cross- examination and observed the tactics and techniques of successful cross-examiners may be tempted to ape the forensic speech, questions, gestures, or attitudes of another attorney. Lawyers are not like peas in a pod. One is tall, another short; one is fat, another thin; one has a fine speaking voice, another's speech is high pitched and raspy; one exudes confidence; another appears uncertain and con fused; and so on. Each lawyer has his own mannerisms, method of speaking, and thought patterns. Projection of these personal attributes makes the best impression on the triers of fact.
Impersonation, If Used, Must Be Perfected
The basic tactic employed by an experienced and accomplished cross-examiner may occasionally be used with success by another if he adapts the tactic to his own mannerisms, speech, and gestures, and perfects his performance of it. Merely reading about or seeing another lawyer use a technique is not sufficient for effective use by counsel. The judge or jury may easily see through the facade.
No good actor gives a performance without repeated rehearsals and competent criticism and direction. Similarly, no lawyer should attempt to impersonate another in open court without rehearsing his part. If the rehearsals show that the tactic or impersonation is ineffective, the attorney should not hesitate to abandon it. Both the words and the gestures, if any, should be rehearsed several times before a full-length mirror. When the lawyer thinks he has mastered them, he should try the act out before a private audience, such as members of his family, office associates, or even friends who are not lawyers (after all, his ultimate audience, the jury, will not be composed of lawyers). If the family, associates, or friends find fault with the performance, the lawyer should either perfect it or abandon the impersonation altogether.
Treatment of Witnesses
At the outset of cross-examination, a good impression is not made by verbally jumping at the witness, assuring a belligerent attitude, and asking initial questions in a loud and antagonistic tone of voice. Counsel must try to lead the witness along the path he wishes to develop. The lawyer must keep control of himself and the witness. If he lets the witness outmaneuver him, get him angry, or lead him into a fight, this may bolster the witness's testimony and weaken the effect of the cross-examination in the minds of the triers of fact. This does not mean that the cross-examiner never should fight with a witness, raise his voice, or become angry. Forensic indignation, whether expressed physically or verbally, may produce good results in special circumstances. These displays should not, however, be resorted to in the initial stages of cross-examination, and should always be used sparingly. It is part of the trial judge's function to exercise reasonable control over the mode of interrogation of witnesses.
Old and Infirm Witnesses
Child Witnesses
Children called as witnesses also require careful treatment in cross-examination. The lawyer should use simple words, but ask his questions in the same manner and tone of voice he would adopt toward a mature person. Presumably the court has already ruled that the child is competent to testify on what he or she saw or heard. The attorney who sugarcoats his questions to a child witness may not find favor with the jurors. They can sense that he resorts to this tone not out of parental feeling but merely to ingratiate himself with the jurors. If counsel can be gentle without being honeyed, his cross-examination is most likely to be effective.
Avoid Over-familiarity with Witnesses
It generally is not a good idea for the lawyer to call a witness by his or her first name, as if he and the witness were well acquainted with each other. The jurors realize that the attorney is not on such friendly terms with the witness that he normally would address him by his first name, and they may resent the condescension implied by this over-familiarity.
Never Make Fun of a Witness
A distinction must be made between a jest and the belittling of a witness. An appropriate witticism may break the tension of the moment and find favor with the jurors; but it should not be at the expense of the witness. Rather, it should be of such a character that the witness may join in the laughter and not feel he is the target of the remark.
If the witness is uneducated, speaks with an accent, has difficulty making himself understood, or mispronounces some words, counsel must not use these short comings to provoke laughter or to humiliate the witness. The jurors will resent such tactics. It is a common American trait to pull for and take sides with the underdog. If counsel makes the witness the butt of a joke, he puts the witness in the underdog position. Moreover, a juror himself or a member of his family may be poorly educated, or come from a foreign country and speak with an accent, or mispronounce some words.
Questions Used To Introduce Unproved
Dishonest and Dangerous Tactic
On occasion, lawyers have resorted to subterfuge in cross-examination to entice a witness into making dam aging admissions or statements contradicting his direct testimony, or to get before the jury unsworn and false statements. This is not the same as an honest examination to discover inconsistencies. The subterfuge may take the form of inserting non-provable or even untrue statements into a question and asking the witness for agreement or comments. The tactic is dangerous as well as dishonest. In the first place, opposing counsel may see through the trickery and expose it; this will discredit counsel, not the witness, in the eyes of the triers of fact.
Treatment of Jurors
Counsel must remember not to keep his eyes constantly on the witness he is cross-examining. He should look at the jurors every so often, for two reasons: (1) He should ascertain the effect his examination is having on the jurors-whether it is impressing them with the importance to his case of the witness's answers or whether they are bored or not paying much attention to the cross-examination at that time. Inspection of the jurors can be a guide to whether counsel should continue or desist from a particular line of questioning. (2) The cross-examiner must remember that he is a performer and the jurors are his audience. No good performer ignores his audience, and all performances are conducted for the purpose of favorably impressing the audience. Therefore he should glance at the jury from time to time. It is best for him not to stroll around the courtroom and not to turn his back on the judge or jurors in order to face the spectators in the back of the room. The spectators cannot vote on the verdict.
Fighting the Court or Counsel
Some attorneys believe it is advantageous to fight with opposing counsel and the judge. They thus at tempt either to demonstrate that they know more law than the judge or opposing counsel, or to give the jurors the impression that their client is not being given a fair trial. Most often neither purpose is accomplished. The jurors usually do not know either attorney and know the judge only by reputation. To them the judge is the fountainhead of justice and legal knowledge. Sometimes the jurors also hold the opposing counsel in high regard. If the record establishes either by direct proof or by proper inference that opposing counsel is unfair or deceptive, these matters can be effectively argued to the jury at the proper time. Counsel must never engage in a personal fight or argument with the judge or opposing counsel. He may with propriety argue a legal question forcefully, presenting his contentions and authorities in a positive and gentlemanly manner. He will not win a personal argument with the judge, however.
