Perspectives from a Mediator/Arbitrator

Monday, September 17, 2007

Arbitration tips - Part 2

Today. I want to say a little bit about cross-examination. I find that there are lots of cross-examinations that seem to lack focus. I once heard an excellent speech by Julian Porter on the art of cross-examination. He said that "cross-examination is a precision strike behind enemy lines - you get in, do your damage and get out before they even know that you have landed".

While that is not true of all cross-examinations, I find that many advocates do not remember this when they are cross-examining. Frequently, a cross-examiner will make a very good point and then at some point in the cross-examination come back to the point again. Now, there is a chance that the witness is going to say something a little different. While that may assist an argument on credibility, it may also deflate the point that was made earlier. I do find myself from time to time why the cross-examiner came back to the point? Try not to. If you really think that the trier of fact has not grasped the point, there is a chance in final argument to highlight it - you do not need to highlight it by revisiting it.

Another reason that cross-examiners should try to keep the cross-examination short is that they sometimes forget that the witness being cross-examined is not a witness that "generally speaking" is going to help the case. The longer the cross-examination goes on - the more likely the witness will begin to repeat points made in the examination-in-chief or make points that were missed in the examination-in-chief. Neither are particularly helpful for the cross-examiner.


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