Trial Magazine

Many attorneys desire the type of dramatic cross-examination often portrayed on “Law and Order,” when the prosecutor wins the case with a series of brilliant questions to the defendant. When I think of these “glory” moments, I’m reminded of the time José Bautista hit a home run that would send the Toronto Blue Jays to the American League Championship Series, and then flipped his bat in the air to the roar of the home crowd. But actual practice is different from television shows and legendary sports moments.

Cross-examination is not the place to challenge an adverse witness or expert unless you are very confident. While some lawyers engage in theatrical cross and have success with one or two great questions, most attorneys will triumph with minor hits. You don’t get the bat-flip moment, but you can make the same impact with singles and doubles.

Build your story with “one question, one fact.” Ask ­yourself, “Without arguing, are there some case facts I can establish with this witness?” Focus on what you want to accomplish, and develop a series of questions that target 
the expert’s or witness’s knowledge or bias in the case. For example, point out that the medical expert was not the treating doctor, relied on the treating doctor’s records, received those records from opposing counsel, and only ­examined the plaintiff once. Break up those questions—remember that small hits to the doctor’s credibility are easier for jurors to follow.

Establish facts favorable to your case. For example, have the expert acknowledge that a trauma can cause your client’s injury, that your client’s injury is painful, and that your client’s pain is real. 

A doctor who disagrees will look foolish. And if the doctor agrees, then the minor hits have driven a number of points home with the jurors.

An effective cross-examination does not always demand a bat flip. Sometimes, we can accomplish the same goal—to achieve the best outcome for our clients—without much fanfare.

Mike Campbell is the founder of the Law Office of Mike Campbell in Columbia, Mo. He can be reached at mike@mikecampbelllaw.com.