Five Tips for Developing Effective Cross-Examination
One of the most disliked aspects of family law litigation is cross-examination. People have a universal aversion to it, from litigators to parents to experts. In family law cases, there are many types of individuals a lawyer will need to cross-examine. Often, the lawyer will cross-examine at least one of the parents, an evaluator or Guardian ad Litem, mental health professions for either parent or the minor child, or other various experts, professionals, or friends and family. Effective cross-examination is a critical tool for litigators to help paint a picture for the factfinder (Judge) of what is in the best interest of the children, just as understanding effective cross-examination is also a critical tool for any professional in a family law case so they are prepared to answer questions in a way that is useful to the factfinder in making decisions for families. The author reflects on the purpose of cross-examination and offers some key guidelines for lawyers cross-examining witnesses and for those who face cross-examination during testimony.
Tip One: Stick to a Theme.
When I prepare for trial, I develop a theme for my case. Utilizing a theme helps the factfinder notice the relevant disputes early in the trial, making the information I present simplified and more memorable. When I prepare for cross-examination, I identify one to three goals for what I want to get out of cross-examining a witness. The goal of cross-examination is not to "win" a debate with the person testifying. Goals could be to expose bias, inaccuracies, or an incomplete analysis; clarify methodology or best practices; challenge or exemplify recommendations; or highlight contradictions.
While cross-examination feels like an opportunity to tear someone down, a successful cross-examination focuses on pulling information out of the person testifying that fits the theme. This applies when testifying on cross-examination as well. As an evaluator being cross-examined, you have already written a report and thus have made recommendations in the case. Importantly, you have an idea of what you think is best for the family and most importantly, the children moving forward. On cross-examination, the goal is to allow the judge to get more information and more clarity on components of your report to draw their own conclusions on what is best.
Trial advocacy courses recommend using primacy and recency effects in cross-examination by bringing up your strongest points first and last. I have always found that a clear theme is far more effective for strategically placing important concepts in a factfinder’s mind versus any psychological “trick.”
Tip Two: Do Not Try to Fit a Square Peg into a Round Hole.
A common mistake litigators make with cross-examination is the attempt to force an answer from a witness. Witnesses rarely will admit they are biased, did not do a thorough investigation, or voluntarily opted to not follow best practices.
For fact disputes, find points that will be agreeable to the person on cross-examination. Start slowly and work your way up to the point you are trying to make. If you believe X+Y=Z and you want the court to order Z - first, endeavor to get the witness to agree X and Y are true and then stop. If you ask if Z is true and they say no, you are undermined. If you keep that in your back pocket for your closing argument or proposed order to the court, there is never a chance to recant Z.
Sometimes the parties agree on the facts, but they disagree on the outcome. In that case, pose hypotheticals to the witness. Does A+B=C? Have the witness explain why that is the case and then focus your time on proving A=X and B=Y through other witnesses or evidence. You do not need every witness to come to the exact conclusions at which you want the judge to arrive. There are different pieces of the puzzle. If you ultimately ask about the conclusion that the equations are the same, the witness can differentiate or explain why they feel it is different - again offering the opportunity to undermine your position.
Tip Three: Preparation Is Key
Effective cross-examination begins with thorough preparation. Begin by reading any reports or sworn statements thoroughly. Print a copy and pull out the trusty highlighters and pens like a college professor. Highlight helpful and unhelpful facts to the client’s position in two different colors. Take notes on missing information and potential next steps. Look for vague language, inconsistencies, or overgeneralizations. Identify recommendations or facts that appear unsupported or facts/recommendations that could be changed by the time of trial. These preliminary steps can identify themes for your case or the goals of the cross-examination. It also helps identify any additional preparation needed before trial to ensure I am not arguing lack of information which is fixable.
Knowing any expert’s history with prior testimony or recommendations could establish patterns of bias. Take detailed notes on expert credentials, licensure, or disciplinary history to highlight any shortcomings in methodology. In contrast, if the opposing counsel is attempting to discredit an expert, an attorney can use this information to bolster their recommendations. Ask about what types of training the expert or evaluator attends if their ability to conduct evaluations or their license requires continuing education. Explore if the struggles this family face fit within the areas about which the expert is knowledgeable.
As part of preparation, I re-familiarize myself with professional guidelines like the AFCC Model Standards and applicable Guidelines, APA Guidelines for Child Custody Evaluations, and other applicable state-specific rules. Keep a copy of the relevant guidelines/laws in a trial notebook to utilize to either support that the practices were followed or to highlight when an expert witness has deviated from these best practices.
Tip Four: You Catch More Bees with Honey
Effective cross-examination depends on the impression the lawyer and the witness make on the factfinder. It is not always about what is said but how it is said. Some litigators take cross-examination as an opportunity to rile a witness up and show their nature to the factfinder. Testifying on cross-examination as a neutral is about demonstrating a neutral nature to the factfinder and clarifying misleading points a litigator may be trying to establish. In general, people decide credibility based on how others look, how they sound, how they are dressed, and how they act. Keep in mind that when cross-examining a witness that the lawyer’s own behavior is reflective of the case outcome and their client’s position. In family court, lay-witnesses become much more hostile the more aggressive the questioning is. Making all of the cross-examination either incredibly tedious or simply too long to effectively convey the one to three goals is counterproductive.
Tip Five: Know When to Hold Them and Know When to Fold Them
Cross-examination is just one of the many tools in a litigator’s toolbox to prove their case. Developing the skill of knowing when to dig in and utilize that tool and when to stop and put it away is essential. Some of the best advice is that less is more. Opting not to cross-examine a witness that is not going to provide any helpful information to the court, or to your case, is better than throwing a few softball questions out there. The impact of a few very effective questions far surpasses proving ten unimportant facts.
The cross-examination can be a turning point in a family law case. With careful preparation and a targeted questioning strategy, attorneys can effectively shift a case in favor of their client’s position. Most importantly, successful cross-examination ensures that custody decisions are made based on complete, objective, and accurate information, keeping the best interests of the child at the forefront of the court’s decision-making – which ultimately as justice partners we are all seeking just from different positions in the courtroom.
Anna Street, JD, is an associate attorney at Tuft, Lach, Jerabek & O’Connell, PLLC. Prior to joining the firm, she was an attorney at a legal aid office practicing primarily in family law. Anna primarily assists families through custody matters involving allegations of violence, mental health and substance use as well as protective orders.