November 2016

How to Avoid That “One Question Too Many” on Cross Examination

By Lilys McCoy

Director of the Center for Solo Practitioners and Solo Practice Concentration, Thomas Jefferson School of Law;
Secretary, SDCBA Board of Directors

You’ve heard it many times before, perhaps from a law school professor or from a seasoned trial attorney at a continuing legal education seminar: “When it comes to cross examination, one of the most important things to know is when to sit down. Don’t ask that question that is one-question-too-many!”

Those grizzled veterans of the courtroom tell you that you will know when you’ve gone on too long, asking that one question that gives the witness room to explain and explain. And, indeed, you will know when you’ve done it. You can feel it in the air. The question hits like a sour note; a sense of dread begins to rise up in you as you watch the witness sit up with confidence. Just before asking this last question, you had the witness where you wanted them. You were in a rhythm and the jury was with you. Then you asked that question — the one-question-too-many — and the witness began to hold forth, spilling her theory of the events right in the middle of your moment, burying the good points you had made earlier. Oh yes, you know when you’ve done it, but how do you avoid it? How do you know when that fatal question is on the tip of your tongue and how can you wrestle it back into your throat?

Let’s first quickly review the basics of cross examination. An elegantly simple checklist outlining the main reasons to cross examine a witness can be found in Street Law Mock Trial Manual edited by Patricia McGuire of the Georgetown University Law Center. The manual states: “The purpose of the cross examination is to show the judge and jury that a given witness should not be believed because that witness: (1) cannot remember facts; (2) did not give all of the facts in the direct examination; (3) told a different story at some other time; (4) has a reputation for lying; (5) has a special relationship to one of the parties (maybe a relative or close friend) or bears a grudge toward one of the parties.” To elicit doubt in the jurors’ minds about one of these five categories, the advocate should ask short, leading questions (i.e., questions that suggest the answer they seek). Roger Dodd, a celebrated trial lawyer and expert on the art and science of cross examination, teaches that short means short: Each question should seek to establish one fact and no more than one fact — the simpler the better.

Finally, cross-examination, like all phases of trial, involves storytelling. Even though you are asking short, leading questions of an adverse witness in a controlled environment, monitored by a judge, and observed by a hawkish figure sitting at the next table over, an effective cross examination reveals a part of your client’s story through the questions you ask and the assent the witness gives. The story may include how this particular witness lacked memory or perspective and it may include how this witness is biased for or against a certain party, but it must still tell a cohesive and comprehensible story. If you are effective, your questions tell your client’s story through the opponent’s witness; to a jury, it is as though as your opponent supports your case all along.

How do these fundamentals lead us to the promised land where you know when to sit down and end your cross exam on a high note of persuasiveness? I believe that the answer can be found in the storytelling piece. And where better to look for advice on storytelling than our neighbors to the North: Hollywood, a town that adds over half a billion dollars to the GDP by doing one thing very, very well — telling stories.

One of the best and most accessible treatments on Hollywood story construction is found in a TED Talk by director and producer Andrew Stanton (“The Clues to a Great Story”). Stanton, the creator of Toy Story, Finding Nemo, and other modern animated classics, provides a structure that, when applied to cross examination, gives light to a simple precept, which can keep you from asking that “one-question-too-many.”

Throughout the talk, Stanton explores various elements of successful stories, all of which are worth your time. But there is one point that applies especially well to cross examination. Stanton first posits the intriguing idea that the audience wants to work for their meal. In Stanton’s words, “Humans are born problem solvers — we are compelled to deduce and deduct — because we do that in real life.” It is why, Stanton notes, we are drawn to babies and puppies. Babies and puppies cannot talk, but we want to enter their experience, and we want to graft human thoughts and feelings onto that experience. It’s like a sentence we can’t stop ourselves from completing, a blank we must fill in.

Drawing out the analogy, the jury is clearly the audience. But what is the meal? The meal, I believe, is the key admission or piece of testimony that you seek. Just as when you try to force food on an already-sated person, if you try to force admission of pivotal evidence on an adverse witness — or, by extension, the jury — they may resist. Yet those same jurors will gladly believe the same conclusion if they reach it using their own powers of deduction. A well-crafted cross examination does just that: It draws the jurors into your version of events and invites them to reach your conclusions on their own through your opponent’s witness. In Stanton’s words, a well-crafted cross examination sets up the jurors to “complete the sentence” for you.

But Stanton is careful to note that the audience doesn’t want to know that they are working for their meal, and that your job, as a story-teller, is to not let on that you are making them work. He states: “It’s the well-organized absence of information that draws us in. It’s the unifying theory of two plus two.” Stanton then admonishes: “Don’t give them four. Make the audience put things together. The elements you provide and the order you put them in are crucial to whether you succeed or fail at engaging the audience.” Applying this concept to cross examination, you draw in the jury and avoid the one-question-too-many by trusting that the well-organized absence of information, through carefully juxtaposed questions (questions that seek only one fact at a time), will say more than you could ever say by trying to force an admission. By asking short, one-fact-per-question questions and ordering each fact in a way that tells your client’s version of events, you will not need to force a conclusory statement onto your witness or your audience. Give the jurors “two plus two.” They will reach the conclusion of “four.” And by letting your jurors do the math, they will convince themselves. Realization is a most powerful type of persuasion. In contrast, if you find yourself trying to force “four,” that is when you are at risk for asking that one-question-too-many.

So, as you prepare for cross-examination, pursue the unifying theory of two plus two. Use a series of short questions, seeking one fact at a time, and put the questions in an order that draws the jury in and makes them want to complete the sentence for you. In so doing, you will have crafted a persuasive cross examination that also, as an inherent part of its structure, protects you from falling into the “one-question-too-many” trap.