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Do's and Dont's


1. Control the Witness by Asking Only Leading Questions. In so doing, you hold the witness tightly and prevent him from slipping away. Ask questions that permit the witness to answer only “yes” or “no”.

2. Control the Questions. Ask simple questions that are easily understood, and avoid compound or multi-part questions. Never ask open-ended questions; word each question narrowly, and have a reason for every question you ask. Finally, never ask narrative-generating questions; they allow your opponent to re-open direct examination and blunt the effectiveness of your cross.

3. Control the Flow. Organize your cross-examination by chronology and subject matter. Ask your questions in a sequence that tells a story that is easily followed. Use descriptive words to highlight the significant points. Pause briefly after obtaining helpful admissions. Impeach the credibility of a witness before you attack the credibility of his testimony.

4. Control the Subject Matter. Never permit the witness to repeat his direct testimony, and never allow yourself to belabor minutiae. Avoid opening the door to disastrous redirect examination by refusing to explore uncharted territory. Take verbatim notes on the witness's direct testimony; you cannot successfully attack what you cannot remember.

5. Always be Courteous Never Harsh or Overbearing. You should always be polite, creating the impression that you are both friendly and fair. This attitude not only contributes to a pleasant courtroom atmosphere, but also makes you more appealing to jurors and does not alienate them from your client.

6. Have a Good Faith Basis for Questions that You Ask. Should you be challenged by your opponent and be unable to provide sufficient underlying proof for your questions, you will have egg on your face and the jury will distrust you forever.

7. Start Big. The jury will have just finished listening to the direct examination. Start their thought processes going in your favor with some major points.

8. End Bigger. A strong finish will leave the jury with favorable thoughts about your case. Find some major point for the closing of your cross-examination.

9. Be Organized. The jury will appreciate the lawyer who has taken the time to organize his or her case so as to move the case along rapidly and get them home or back to work sooner.

10. Use Space in the Courtroom. Unless the judge restricts you, use distance and position to your advantage. It keeps the jury more alert, and can contribute to emphasis and effect.


1. DON’T Argue with a Witness. When you do, you lose control not only over yourself but also over the witness. You sacrifice your professionalism and call into question your confidence in your case. Worst of all, you allow the witness to control you. A lawyer never scores points by arguing with a witness. You win your battle by eliciting the answers you need or the responses you want through skillful questioning.

2. DON’T Answer the Questions of an Opposing Witness. If you allow this, the witness controls the cross-examination rather than you.

3. DON’T Argue with the Judge. When you argue with a judge in front of the jury, you commit a mortal sin against self-control. A lowly lawyer can never win an argument with a judge, particularly when it is carried out in front of an audience.

4. DON’T Allow Yourself to be Baited by Your Opponent. Worry about your case, not your opponent! If you permit your opponent to get your number, you have sacrificed self-control and concentration at your client's expense. Some jurors may be amused by a shouting match between you and the other lawyer, but the judge and your client will not be amused. Also, these unprofessional interludes will contribute nothing to your case.

5. DON’T Let the Jury See that Your Case has Been Hurt by an Answer. Once in a while, even though you have asked nothing but leading questions, you will elicit an answer that seriously damages your case. This is the time for the utmost self-control; do not change your demeanor, your expression, or the pace of your cross-examination. If you do, you risk revealing that your case has been hurt, and you may even highlight the damage.

6. DON’T “Kill” a Witness Unless the Jury Wants Him Demolished. The lawyer in the courtroom is very much like the matador in the bullring. In facing his adversary the matador does not immediately plunge the sword into the body of the bull. If he did, the crowd might very well feel sorry for the bull.

7. DON’T Cross Examine Just to be Talking. If there is no impact to be had by cross-examination, just announce that you have no questions. This itself will carry a big impact.

8. DON’T Re-Affirm Points that Hurt You. If a witness has given direct testimony that is against you, avoid giving them any opportunity to repeat that testimony.

9. DON’T Rely on the Judge to Discipline the Witness. It is a sign of courtroom weakness to call upon the judge to discipline the witness. Try to do it yourself. Use the judge only as a last resort.

10. DON’T Be Cocky. Even when you have great questions for the witness, do not let the jury see you as a typically conceited lawyer. Ask as many killing questions as you can, but try to keep the tone as respectful and truth-seeking as you can.


1. Prepare Your Witness Thoroughly. The most important time in trial preparation is for the lawyer to spend several hours with any key witness just prior to trial. It will add immeasurably to the case.

2. Use Demonstrative Evidence. Direct testimony can be enhanced significantly by having the witness refer to a photograph or a chart or other type of demonstrative evidence.

3. Try Asking the Questions Without Notes. It will impress the jury if you can occasionally stand in the middle of the courtroom with no notes and conduct a direct examination. It again shows your control of the case.

4. Have Case Law Ready. Have either a trial brief or xeroxed copies of cases available for you on any major points that you expect to come up during the direct examination of a key witness.

5. End Big. Try to take the testimony of the witness to a significant factual point and end there, making a big impression upon the jury.

6. Encourage Any Key Witness or Party to See a Trial. For someone who has never seen a jury trial, encourage them to go to the courthouse some weeks before this case is to be tried and watch other people testifying. It should put them at ease and make things smoother.

7. Cover Any Problems. Try to be certain that you bring out any expected problems during direct examination so that your opponent will not have the opportunity to drive home big points during cross-examination.

8. Direct Witness to Jury Occasionally. It is usually good to start an occasional question with, “Now, please tell the jury about/why...”. The witness who never looks at the jury can make the jury uncomfortable.

9. Consistency in Tone and Demeanor. Make certain the witness is prepared to answer your questions in the same manner that they will answer questions of the opposing attorney. If a witness is extremely responsive to you and extremely unresponsive to your opponent, it will show them to be biased and prejudice.

10. Make Certain the Witness Can be Heard. Take responsibility for being sure that the witness is speaking loud enough for the court and jury to hear them. This is too often ignored, and results in the jury not getting important information or resenting your lack of concern about them.


1. DON’T Forget the Jury. Always be attentive to the jury --- as to whether they can see exhibits, hear evidence, and generally participate in a full way during the trial.

2. DON’T Worry About Getting the Last Word. Re-direct examination questions can be important naturally, but do not get involved in a protracted re-direct and re-cross just to get the last word. This tires the court and the jury.

3. DON’T Appear Over-Rehearsed. The jury will be more favorably impressed with a conversational tone. This can be accomplished by going over essential points with your witness but not developing word-for-word answers.

4. DON’T Fail to Make the Elements of Your Case. Have a checklist of essential questions that must be asked, and be certain that those are asked.

5. DON’T be Stiff. Use common words and everyday language. The jury will relate to you better, and will understand the case better.

6. DON’T Lead Your Witness. Your opponent will most likely object. Even if your opponent does not, the jury will recognize that you are doing the testifying.

7. DON’T Waste Time. The jury members are away from their homes and jobs. They want to move on. They will appreciate the lawyer who is organized and moving the case forward.

8. DON’T Bore the Jury. The jury will appreciate an attorney who prepares an interesting case in an interesting fashion and presents it in that way. Be careful to avoid boredom at all times.

9. DON’T Fail to Rehabilitate Your Witness. If damage is done on cross-examination, be ready to use re-direct for rehabilitation purposes. Anticipate this in preparation.

10. DON’T Sit Down. Be in charge in the courtroom. Use the space you have. Be on your feet and in control.

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