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Cross Examination Tips From Ben Eder

I had the honor of presenting at the OCDLA Conference on January 27th teaching other lawyers about my cross examination style. Cross examination takes a lot of practice but it can win or help you win a case. It can be an opportunity to either support your narrative of the case through cross examination or destroy the other side’s theory of the case through their witness.

I start preparing my cross examination of the other side’s witnesses after I have all of the facts of the case. Knowing the law and what you either need to prove or raise doubt about is essential to developing your theme for the case. Once you know what the law is, what your case is about, the other side’s arguments (or potential arguments) and thought about your message to the jury; you are ready to draft your cross examination questions.

Here are the top ten tips towards a successful cross examination:

1. Short questions are easy for the jury to understand and hard for the witness to wiggle out of. Short questions can lead to short answers.
2. Don’t ask open ended questions where the witness gets to explain his or her answer
3. Your tone matters
4. Eye contact is important to control the pace. If you let the witness have time to think between questions, you might let the witness fill the silence. You want to control the pace and questioning.
5. Brain storm which topics you want to cover with each witness. Finish each topic before moving on. But save your argument for closing because closing is where the lawyer has the most control.
6. Don’t ask questions that waste the jurors time. It’s important to think about the audience.
7. Make sure you have thought about what the answers will be to each question.
8. Listen to the answers. The lawyer needs to be responsive.
9. Repeat the question if the witness does not answer the question. The lawyer’s question must be answered unless the judge sustains an objection. Don’t repeat a question that the witness has already answered.
10. Talk about the cross examination strategy with your client. He or she might be able to help you or at least become educated as to your strategy.

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