Notice the ‘Part II’ in the heading of this article. That’s because this is the continuation of another article, so be sure to check the first part before diving into this one for better context and understanding of cross-examination!
Link to the first article here:
Rule 4: Listen to the witness’ answers
While it may seem like a natural thing to do—to listen to someone’s answers—people, more often than not, end up hearing rather than truly listening. This happens frequently even in situations outside the courtroom.
Mr. Gopal emphasizes the importance of being alert and attentive when listening to a witness’ answers. These answers will either solidify the path you’re heading towards as planned, leading you closer to the ‘endpoint’ of the case you’re trying to prove or open up new ‘rabbit holes’ you may want to uncover further.
Realistically, you can plan your case theory and strategy as much as you like, but human nature is unpredictable and ever-changing. You cannot expect witnesses to always give the exact answers you’re looking for. This is why listening goes hand in hand with being adaptable because when witnesses respond unexpectedly, your ability to pivot becomes critical to maintaining control of the narrative.
Listening is also a powerful tool for detecting dishonesty. Don’t just hear—you must listen. Listening allows you to pick up on inconsistencies, hesitations, or even subconscious cues that can expose lies or vulnerabilities. It’s not just about getting through your questions—it’s about genuinely engaging with their responses.
This concept is akin to war settings. Time and time again, history has shown us that war generals can spend months or years meticulously planning battle strategies, only to face unforeseen maneuvers by their opponents. This is why flexibility and adaptability are essential when plans don’t go as expected.
Sun Tzu stated:
“Rouse him, and learn the principle of his activity or inactivity. Force him to reveal himself, to find out his vulnerable spots.”
This directly applies to the art of listening in cross-examination. By actively listening, you can “rouse” the witness into revealing crucial insights or weaknesses. Their responses can inadvertently expose inconsistencies or gaps in their testimony, providing you with the leverage needed to turn the case in your favor.
Rule 5: Less is more
Crafting questions for cross-examination requires clarity and simplicity. Avoid overwhelming the witness with long, multi-layered questions that leave them confused about how to respond.
For example: "Mr. [Name], did you go to the laundromat on December 5th, 2013, with a pink laundry bag containing clothes from December 1st to 5th, and did you place the bag in the second row’s last washing machine before sitting in front of it to wait?"
This type of question not only confuses the witness but also increases the likelihood of receiving unclear or incomplete answers. Instead, break the question into smaller, digestible parts:
Instead, break the question into smaller, digestible parts:
“Did you go to the laundromat on December 5th, 2013?”
“Did you bring a pink laundry bag with you?”
“Did the laundry bag contain clothes from December 1st to 5th?”
By breaking down the questions, you maintain control over the narrative and ensure the witness can answer clearly and concisely. This technique also makes it easier for the judge or jury to follow the line of questioning.
Additionally, use simple and clear language. Not all witnesses come from highly educated backgrounds, and overly sophisticated language may confuse them, inadvertently weakening your position.
Sun Tzu teaches us:
“He overthrows their kingdom without lengthy operations in the field.”
In cross-examination, this translates to avoiding unnecessary conflicts with the witness and refraining from asking lengthy or convoluted questions. Keep your questions short, direct, and plain. Less truly is more.
Rule 6: Save the ultimate point of your cross for summation
The heading for this rule may be longer than the others, but the principle it conveys is straightforward: save your ultimate point for the summation. This is where you present your closing statement to the judge, “advising” them on how much weight should be given to the witness’s testimony.
During cross-examination, you aim to gather information, expose weaknesses, and lay the groundwork for your ultimate argument. Avoid reiterating your key point prematurely; instead, strategically reserve it for the summation to make the most impact.
A starting point for crafting your summation could be to ask yourself whether the witness is truly independent or if another party may have influenced them. If you can demonstrate that they are not independent, this can diminish the credibility of their testimony.
For example, in your summation, you might say:
“In fact, (state your ultimate point). Thus, you may not want to give as much weight to this witness’ statement as you would otherwise.”
A strong summation includes:
A brief chronology of key events.
A logical explanation of why the witness’ testimony supports your case or undermines theirs.
Your ultimate point, which ties everything together and directs the judge towards your desired conclusion.
Sun Tzu’s wisdom applies here as well:
“The consummate leader cultivates the moral law, and strictly adheres to method and discipline; thus it is in his power to control success.”
Your summation is your final opportunity to “cultivate the moral law” and guide the judge toward a disciplined understanding of your case. It’s your chance to control the outcome by methodically presenting your ultimate point, making it the cornerstone of your argument.
Conclusion
The rules that this article has covered include:
Rule 1: Knowing your endpoint
Rule 2: Cross-examination is not examination crossly
Rule 3: Do not ask a question to which you do not know the answer
Rule 4: Listen to the witness’ answers
Rule 5: Less is more
Rule 6: Save the ultimate point of your cross for summation
While these rules and Sun Tzu’s wisdom provide valuable theoretical insights for preparing for the ‘wars’ of cross-examination, the true mastery of this art comes only through practice and experience.
Written by: Deborah Ong Jia En
Edited by: Lee Mann Heyy
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