CROSSING TO CLOSE: Focus
Cross-examination is the first of the Essential Skills that a Litigator must be excellent at to accomplish his Mission. To conduct a proper Cross, a Litigator must focus his examination on the things the jury needs to reach a verdict.
While the Litigator will spend some time Diminishing* a Hostile’s character for truthfulness during Cross, it is not his objective to destroy the witness so that the jury will wholly disregard his testimony
First of all, this is not possible. The jury knows that even a stopped clock is right twice a day and that a largely Diminished witness (even one who is forced to admit having lied in the past) may well be telling the truth now, under oath, on this occasion. Thus, setting out on Cross to destroy a Hostile’s credibility through Diminishment is not the right objective—the Litigator might achieve it and still get nowhere.
Moreover, the Litigator who devotes most of his Litigation-energy to Diminishing the witness is approaching Cross as if it exists in a vacuum. You don’t Cross to Diminish, you Cross to Close. Bearing this in mind should have one immediate (and advantageous) effect on the quality of the Litigator’s Crosses—it should make them shorter, and this is the First Principle Of Cross: The shorter, the better.
The principle of The shorter, the better applies to any endeavor that requires sustained human attention to have impact. The longer you must maintain the concentration of people, the more difficult it is to achieve your objective. Whether it is a speech about gardening or an opera, the principle of The shorter, the better applies.
The Litigator shortens his Crosses by focusing on the Facts that the jury must have in order to answer the Issues that the judge will put to them in his Instructions
The Litigator cannot forget that it is the judge’s voice that will always be the last one the jury hears before they troop out and begin deliberating. It is the judge who will tell them what the Issues are and instruct them on the Elements that they must determine in order to decide those Issues. He, not the Litigator, he will represent the ultimate authority that guides them to a verdict.
When the Litigator bears the BOP (Burden Of Proof), his voice will only be the penultimate one the jury hears. And, unlike the judge, the jury will be fully aware that he, as an advocate rather than a neutral, has skin in the game. As a result, the Litigator may have some authority with the jury, but only to the degree that his Close conforms both to the evidence the jury has already heard during the Trial and the Instructions** that they will receive from the judge when the Litigator stops talking.
The Litigator’s limited authority with the jury will erode in direct correlation to the variance of his argument from the Facts they have heard and the law the judge will give them. This is why he must Cross to Close, focusing primarily on the Facts in dispute that the jurors have to decide and the applicable law they will be told to follow.
Anything else will just be a distraction to them.
______________________________________ * Diminishment is the erosion of the jury’s belief in the truthful character of a Hostile witness. ** The Instructions are the law and direction provided by the judge to the jury just prior to deliberation.