When we think of cross-examination in court, the image that often comes to mind is of a lawyer aggressively grilling a witness with forceful “Right? RIGHT?!” questions or demanding rigid yes-or-no answers, leaving little room for elaboration. It’s not surprising then, that Sun Tzu isn’t the first figure one associates with the courtroom, yet I found a compelling connection between his timeless wisdom and cross-examination through one powerful concept: war.
War isn’t just the armed conflicts we see in places like Israel-Palestine or Ukraine-Russia; it’s also the battles we face internally, the struggles we have with others, and the contests we engage in to achieve our goals. Reading Sun Tzu’s “Art of War” illuminated for me that a courtroom is, in many ways, a battlefield of its own. This is why this ancient strategist's principles have remained so relevant today — they can be adapted well beyond the realm of traditional warfare. This article will summarize Mr. Gopal Sreenevasan’s (“Mr. Gopal”) key advice from his recent online webinar on cross-examination and explore my parallels between Sun Tzu’s “Art of War” and the art of cross-examination.
Rule 1: Know your endpoint.
If you studied Chemistry in high school, you might recall titration — where you dropped a solution from the burette, eagerly waiting for the endpoint where the conical flask solution turned pink. Similarly, in the courtroom during cross-examination, you have to conduct the process with a clear understanding of the ‘endpoint’ of your case.
You might then wonder: what exactly is an endpoint? It’s what you’re trying to prove in court, the argument you want to persuade the judge to accept to secure a favorable ruling. Mr. Gopal emphasized the importance of Case Theory in this regard, where you must identify what you aim to achieve by the conclusion of your cross-examination. This aligns perfectly with Sun Tzu’s wisdom:
“[T]he general who wins a battle makes many calculations in his temple before the battle is fought. The general who loses a battle makes but few calculations beforehand. Thus doing many calculations lead to victory, and few calculations to defeat: how much more no calculation at all! It is by attention to this point that I can foresee who is likely to win or lose.”
Mr. Gopal consistently emphasized the importance of knowing your case inside and out, to the point where you may even find yourself more familiar with the details than the witness or defendant. This perfectly aligns with Sun Tzu’s wisdom:
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
Hence, knowing your case theory and ingraining it in your mind is crucial, much like understanding the terrain of a battlefield. How do you expect to win a battle on a battlefield you do not know how to use to your advantage?
Equally important is how you present yourself during cross-examination. Mr. Gopal further stated the importance of making an impression in the courtroom. You must appear organized, steady, and well-prepared to convey to the judge that you are in control.
A key aspect of this is document management, by organizing your references and files so they are easily accessible during cross-examination. The last thing you want is to fumble for a document in front of the judge, as it not only appears disorganized but may also give the impression that you lack mastery of your case. Personally, cross-examination is an art — a performance designed to persuade the judge of your point.
In essence, knowing your end point means identifying the key facts you want the witness to confirm, proving your client’s case theory, or undermining the witness's credibility.
Rule 2: Cross examination, is not examination crossly.
Remember, NEVER lose your composure in the courtroom. Do not react to any potential outbursts or shouting from the witness if they lose their temper. They might lose their cool, but you cannot afford to lose yours. Mr. Gopal stressed the significance of staying calm with a piece of advice: when they get louder, you get softer. Why? Well, this approach signals to the judge that the issue lies with them, not with you. It demonstrates poise and professionalism. You must respond thoughtfully, not react emotionally.
On the topic of reactions, NEVER argue with the witness, even if their response is unexpected. Avoid trying to force words into their mouth just to suit your narrative. Mr. Gopal advises handling witnesses with fairness and courtesy because, inherently, cross-examination is already an unfair process. As aspiring lawyers, we should not exacerbate this imbalance by treating witnesses poorly.
To elaborate, cross-examination is considered naturally unfair because it places the witness in a pressured environment where they are expected to answer complex or leading questions from a trained lawyer who may already know the case inside out. The dynamic inherently tilts the power balance against the witness, as they are being interrogated in front of a judge without the same preparation or expertise. For this reason, it is critical to maintain fairness and decorum throughout the process.
Sun Tzu writes:
"Therefore the skillful leader subdues the enemy’s troops without any fighting; he captures their cities without laying siege to them."
This emphasizes the value of strategic mastery and achieving your objective with minimal conflict or resistance.
He also states:
"He will win who knows when to fight and when not to fight."
This highlights the importance of discernment in battle — a principle equally applicable to cross-examination. You don’t “fight” with a witness when they are reacting emotionally or providing unexpected answers that momentarily disrupt your line of questioning. Instead, Mr Gopal stated that one should permit the witness to explain when they want to.
Contrarily, Irvin Younger famously stated that it is a commandment to “NEVER permit the witness to explain their answers.” He reasons that the more words someone speaks, the more opportunities there are for inconsistencies or distractions, ultimately undermining the precision of your case.
Mr. Gopal’s approach is that it’s acceptable for a witness to explain themselves, provided you skillfully rein them in when their explanation veers into irrelevance or dilly-dallying. A courteous interruption such as, “Allow me to stop you there. We’ll get back to this later,” can redirect the focus without appearing harsh.
Sun Tzu reinforces this principle:
"Therefore the clever combatant imposes his will on the enemy but does not allow the enemy’s will to be imposed on him."
Therefore, imposing your will looks like asking questions to which you know the answers to, but also not allowing the enemy’s will to be imposed on you means preventing the witness from explaining themselves in a way that disrupts your case.
That said, this approach requires years of experience and finesse to execute effectively. It’s a delicate balance: stopping a witness without giving the impression that you are suppressing them in what is already perceived as an inherently unequal process. Ultimately, the style of handling such situations depends on the cross-examiner’s strategy and personal approach.
Rule 3: DO NOT ask a question which you do not know the answer.
Upon reading Rule 3, you might wonder: “But how do I ask a question I already know the answer to? Isn’t that illogical? Don’t we ask questions because we want answers?”
Irvin Younger addresses this aptly: "How do I know the answer to a question? Read! That’s how exams work anyway! You know the answer because you studied for it!"
Similarly, in cross-examination, you frame your questions around answers you already know. Treat the answers like stepping stones towards your goal by the end of the cross-examination.
Mr. Gopal highlights the need to know dates inside and out because, as he puts it, “dates are a stubborn thing.” Dates are unchangeable, and because of this, they can quickly expose inconsistencies when a witness strays from the truth. When the facts and dates don’t align, the cracks in the testimony become evident.
In conclusion, mastering the art of cross-examination requires precision, strategy, and an understanding of human behavior — qualities equally emphasized in Sun Tzu’s timeless Art of War. Crafting questions with purpose, maintaining control, and leveraging unchangeable truths like dates are pivotal tactics for any cross-examiner.
But there are more rules to uncover, so stay tuned for the next article!
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