THE TOP 10 TIPS FOR EFFECTIVE CROSS EXAMINATION

Herschel Fogelman, Basman Smith LLP.1

One of the most dramatic changes brought about by the passage of the Family Law Rules has been the
shift in Family Law from a strictly adversarial proceeding to a hybrid proceeding with a heavy emphasis
on settlement oriented court attendances such as the case / settlement conference. This change has
had a significant effect on the Family Law practitioner, and his or her skill set, in a variety of ways. The
interplay between the conference process, the front end loaded disclosure process and the requirement
for leave to question has, for most files, rendered the cross examination on affidavits and financial
statements a thing of the past. Very few cases proceed to questioning and even fewer involve a strict
cross examination. In my early years of practice, cross examination on affidavits was common place, as
Family Law was dominated by the interim motion and cross examination on sworn evidence formed a
crucial part of the evidence on that motion. That is no longer the case.

The result of this change is no doubt a positive one in the sense of improving settlement possibilities,
streamlining the process and reducing costs and conflict for the litigants. For the practitioner it has,
unfortunately, also meant that one of the tools in the proverbial tool box- the skillful/surgical cross
examination- is a rusting shadow of its former self. The reality is that a very small percentage of cases
proceed to questioning. An even smaller percentage proceed to trial, and those trials tend to be
dominated by a limited pool of trial counsel. As such, many family law practitioners never get a chance
to use, much less sharpen, their cross examination skills in open court. This is a problem, since, for
the most part, these skills cannot be taught in seminar form. It is the act itself that is the best teacher.
That being said, there are certain fundamentals that can be identified, if not taught.

This paper and the ensuing demonstration are intended to be a general overview of effective cross
examination strategies. This is by no means a comprehensive list, or an authoritative review of 200
years of oral advocacy. It is, as the title suggest, tips, which are meant to guide and assist you the next
time you are confronted with this opportunity. I trust you will find it useful.

TIP 1 – WHY AM I HERE?

The most important thing to consider when doing a cross examination is why you are doing it. What
evidence or information are you trying to uncover? What issue in the case are you trying to determine
or flesh out? You must ask yourself first and foremost what you are trying to accomplish with the cross
examination before you can commence any kind of preparation for same. There will be times in a trial
when you choose not to cross examine a witness or to limit your cross examination because it serves no

1
I am indebted to my partner Jennifer Shuber for her skillful and patient editing of this paper.

© 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission
of The Advocates' Society.
useful purpose. You will only be able to consider whether or not to cross-examine, and make the
correct decision, if you first consider the utility of the exercise.

TIP 2 – YOU CAN’T WIN YOUR CASE IN CROSS EXAMINATION.

In Family Law, you are not going to get some tearful admission in the middle of your cross examination.
This kind of thing really only happens on TV. Do not fall into the ego trap, thinking that you will garner
some significant admission in your cross that will blow the case wide open. It is just not going to
happen. You will win or lose your case in your direct evidence and in the direct evidence of the other
party and his or her witnesses.

It is probably equally true that you cannot lose your case in cross examination. However, if you are not
careful, the cross examination of the other party can undermine your strategy and your client. If you
are not vigilant, the other party will use your cross to correct and augment their evidence. This will
occur if your questions are not directed or if they are not restrictive. Preparation is essential to a
successful cross-examination. If your cross is not well prepared, the witness starts to look better. The
more you flounder, the more believable the witness and his evidence appears. The natural tendency is
to prefer one side or the other, and if one side is floundering, the opposing side starts to look better
and better.

TIP 3 – BE SPECIFIC IN YOUR GOALS.

Tips 1 and 2 merge in Tip 3. Knowing that you cannot win your case in cross and having asked yourself
why you are cross examining this person in the first place, you must now hone in on the specific areas
you wish to cover to get the evidence you need. When preparing, before you list the questions, list
the goals. That will direct you to the questions.

If you have decided to cross examine a party or witness, you should be very clear on what it is you need
from this person. The reasons you will cross examine include:

- To damage their credibility. This witness may have said something damaging to your client. By
attacking or impeaching their credibility, you may be able to take the sting out of their previous
evidence. Credibility is an issue in most trials. You want the judge to believe your client and, if a
choice has to be made, to prefer your client’s evidence over that of the other person. To accomplish
this “favouring” of your client, you must damage the other parties’ credibility, which can be
accomplished in cross.

- To gain specific admissions. Perhaps what you need from this witness are specific admissions – such as
admissions relating to income, assets, debts etc. This is especially true of third party or expert
witnesses.

© 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission
of The Advocates' Society.
- To supplement the other side’s version of the evidence. If the other party has given evidence and told
their “story”, the likelihood is that it is not the whole story. You will want to flesh out the full story, not
just the parts favorable to the other side. For example, a parent may testify in chief that he has a close
relationship with the children’s nanny. In cross, you reveal that when dad said close in chief, he actually
meant he was having an affair with her, which he neglected to mention in his their direct evidence.

-To clarify the witnesses previous evidence. Perhaps what the witness said in direct was unclear and
clarity of definition would be favourable to your client. This is a bit of a minefield however, as there will
be occasions when confusion is your friend.

- To catch the witness in lies or half truths. Most family law parties give evidence that is replete with
half truths or statements that are slanted in their favour. Cross examination is the only tool you have to
challenge these half truths.

-To put certain propositions to the witness that they will either have no choice but to accept or, by
denying the proposition, they undermine their own case. Consider a mother seeking sole custody. You
put the proposition to her in cross-examination that children of divorce do better when they have
healthy relationships with both parents. Mother is stuck no matter how she answers. If she agrees, it
undermines her sole custody case. If she disagrees, she looks self-serving and unwilling to respect the
father’s relationship with the children. Either answer is a win for your client. To establish hidden
agenda or different motives. For example, a party may want additional time with the children to limit
his or her child support. This may be hidden in direct, but available in a cross.

TIP 4 – START WITH YOUR BEST POINT AND END WHEN YOU ARE FINISHED.

Your audience is the judge, and he or she has a limited attention span. That is not a criticism, it is simply
a fact. When you start your cross, the judge is at his or her most attentive, so start with your best point.
If you need three of four questions to set it up, that is fine, but the quicker you can make that first strike
the better. It will also make the witness less comfortable to know that his or her case has been
successfully challenged so quickly.

If you only have a few good points make them and sit down. There is no value to droning on asking
questions that have no bearing on anything. When you finish your listed goals you are done, unless
something arises during that sequence that leads you to another area. The court will appreciate your
brevity and clarity.

TIP 5 – CROSS EXAMINATION IS NOT EXAMING CROSSLY.

That should go without saying but, unfortunately, in many cases counsel try too hard to be tough,
aggressive and imposing which, frankly, is a waste of time and effort. Be yourself. Be respectful. The
court will respect you more and, by association, your client will also appear more sympathetic. A rude

© 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission
of The Advocates' Society.
and belligerent questioner does not gain any marks in front of the court. You can be direct and forceful
without being rude.

TIP 6 – SHORT, SHARP AND CLOSED ENDED QUESTIONS.

We have all been told to only ask closed ended questions on a cross examination, and while we know
that is the rule, it is very difficult to honour it over any sustained period of time. It is especially hard
when an answer is unexpected or when you have heard evidence that you were not prepared for.
When that happens, the natural tendency is to ask the witness to explain or clarify, which is the most
dangerous thing you can do. Open ended questions are a gift you should not be giving to the witness in
cross-examination, since any occasion you give the witness to clarify and explain allows him or her
another opportunity to hurt your case.

The best way to frame close ended questions is to make the question itself as short as possible, or to
prepare the longer question with multiple short questions. To do so, you may need to break the
question into multiple parts. The example below is illustration of this.

Q: Is it correct that for the period 2009 – 2011 inclusive that the children resided primarily with your
wife?

This seems like a simple question and one to which you could easily get the answer you need. In actual
fact, this question is a minefield. The problem with this question is that terms are not clear or
established. That lack of clarity allows the witness to easily answer with his or her interpretation of the
terms: “No, the children did not reside primarily with my wife as they had plenty of time with me” or
“Not in the summers, which were shared equally other than the time the children were at camp” or
"what do you mean by primarily/”…. To avoid such pitfalls, it would be far better to approach the issue
as follows.

Q. You would agree with me that for the school year 2009, other than the alternating weekends, when
the children were with you, the children resided with your wife?

A: Correct

Q. So, arguably, the children resided primarily with your wife for that period, correct?

A. Yes.

Q: And you would agree with me that, for the 2009 and 2010 school years, since there was no change to
the residential schedule, the children resided primarily with your wife?

A. Correct

Q: You would agree with me that, for each of the last 3 summers, your children attended two weeks of
sleep over camp?, and when not in camp the usual “school” schedule applied?
A: Correct

Q: And for those last three summers, other than the time the children were at overnight camp, the usual
“school” schedule applied?

© 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission
of The Advocates' Society.
A: Correct.

Q: So then you agree with me that for the period 2009 to present the children resided primarily with your
wife?

A: Uh I guess so.

TIP 7 – HOW ARE YOU GOING TO ORGANIZE YOUR QUESTIONS?

Think in advance about the order of your questions. There are many academics and senior practitioners
who believe that asking questions in no apparent order, without grouping them in any apparent theme,
is a better approach than asking an organized and sequential series of questions. Proponents of this
approach believe that the more uncomfortable they make the witness on cross, the better. A good way
of unnerving the witness is by asking questions that appear scattered. It prevent the witness from ever
feeling at ease in the box, since he or she has no idea what area you are next going to cover. Such
advocates believe, for example, that questioning in chronological order puts a witness at ease, since he
knows how the questions will unfold. Putting a witness at ease is exactly what you do not want to
accomplish on cross-examination. While that may be correct, the risk of a more scattered approach is
that the judge may also have trouble following your order and wonder what you are doing.

My preference is to order my questions in some logical manner – either by time, by issue, by event etc.
At the same time, I do not ascribe to the theory that you have to tell the judge before you start what
order you will go in or map the cross-examination out for him or her. Just remember that if you lose the
judge, it really does not matter what the witness says.

TIP 8 – HAVE A SCRIPT, BUT DON’T BE SCRIPTED

When teaching juniors in my office I often use the phrase that an advocate has to be nimble. An
advocate has to have a feel for what is happening at the trial. He or she MUST be able to adapt to
changes. Having a script is good and necessary, but being wedded to a script is a mistake. You need to
have a feel for when the judge is bored or interested, you should be aware of areas that he or she
thinks are relevant or irrelevant, you should have a sense of how the witness is doing regarding one area
or another. When faced with a judge who asks them to move on, I have seen many lawyers respond by
saying “OK, Your Honour, I only have thirteen more questions in this area.” That is clearly the wrong
answer. When the call comes to move on, move on. Maybe try to come back later if it is absolutely
essential to your case, but when the person on the dais says move on, MOVE ON. Remember a trial is
a dance. The judge is always in the lead.

© 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission
of The Advocates' Society.
The ability to be nimble is directly related to your level of preparation and knowledge of the case. The
more prepared you are, the easier it will be for you to move through the issues and around the various
aspects of your argument as you gauge the tenor of the trial.

TIP 9- REFERENCE LANGUAGE IN THE CASES OR LEGISLATION

It is very effective if you can cull language from the cases you are going to rely on and put specific words
or phrases from those cases to the witness. This is also true in your direct. The most commonly used
phrase in family law is “best interests”. Many cases use that term. It often finds its way into specific
questions. But there are many other words or phrases that you can put to witnesses that dovetail nicely
to case law or statute. For example:
- when questioning on section 7 expenses, use the words “reasonable” or “necessary”, or that
they “pre-dated the separation”
- If you want to establish that a party have income imputed to him or her use words like “under-
employed”

There are many more examples of this. If you can get these admissions or answers, they will go directly
to your final argument.

TIP 10- CONSIDER WHO YOU ARE EXAMINING

If you are examining a third party who is there to add information, attacking them is not likely going to
be a good plan. For example, the teacher who is giving evidence on Timmy’s school performance would
rather be anywhere else in the world but in court, and the judge knows it. Be respectful. An expert
witness is a professional. He or she is just doing his or her job, and is likely not vested in the case or the
parties. As such, your cross examination of them should be respectful and professional at all times.
You can impugn their findings without attacking them personally.

Lastly don’t make the grandmother cry, ever, as tempting as it may be. It won’t win you any fans with
the judge. Identify the witnesses to whom the judge appears sympathetic when they give their direct
evidence, and treat them accordingly.

IN CONCLUSION

Cross-examination, as they say, is an art and not a science. It is a combination of technique and
preparation. The more opportunities you have to hone your technique the better you will be in the long
run. Take courses. Watch other lawyers in court. Take any and every opportunity to conduct cross-
examinations, whether in real cases or in role plays in continuing education programs such as this one.
Time on your feet actually doing it is the best teacher. As good as you become, never forget that your

© 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission
of The Advocates' Society.
preparation in each case is crucial. You may be great on your feet, but you need to know the case and
therefore what you are trying to accomplish in your cross.

© 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission
of The Advocates' Society.