This approach requires judgment and knowledge of your judge. It is counterintuitive— like martial arts— using the opponent’ s aggression against them.
Impeachment for bias is underappreciated. Rarely do lawyers catch lies. More often we impeach:
1. Conclusions unsupported by underlying facts. 2. Partisanship. 3. Prior inconsistent statements.
The engine remains the ABC brevity and quality of questions. The questions should answer themselves. For example:“ You only saw the plaintiff one time, on one day, 1 ½ years ago …”( Answer:“ Yes …”).
5. Storytelling Cross
Cross is another chance to tell your story. That’ s why it doesn’ t matter what the witness says. You are testifying through your questions.
Storytelling in trial became mainstream roughly 35 years ago. Now we take it for granted.
Gerry Spence elevated storytelling cross by combining it with psychodrama. His“ compassionate” or soft cross is built on structured story development and psychological insight.
Psychodrama techniques include:
• Role reversal
• Doubling
• Scene setting
• Soliloquy
The lawyer asks questions whose literal answers don’ t matter because jurors understand the true motivation.
Recreate the event. Access emotion. Reveal motivation. Don’ t tell me— show me.
Nobody likes angry people. Much cross sounds like argument. When you point a finger at a witness, three point back at you. You may win the battle but lose the war.
With storytelling and constructive cross, you examine without sarcasm.” Cross does not have to be cross.”
Never call a witness a liar. If it’ s obvious, then you don’ t need to say it. If it isn’ t obvious, then it’ s too risky.
Talk about bias, interest, motive, please do. But do not talk about people. You are competent to judge acts, but leave judging people to the jury. They will do it by the size of their verdict. If you beat the witness up, there’ s nothing left for the jury to do with their verdict.
Soft cross strengthens your humanity and credibility while allowing jurors to draw their own conclusions.
6. Stern’ s Cross— and Dynamic Cross
Judge Herbert Stern believed the purpose of cross is the same as opening and direct: argue your case. You argue through the witness— not with the witness. He identifies three purposes:
1. Impeach. 2. Get help( hitchhike). 3. Show the testimony does not matter.
Whenever you attack credibility and fail, you wound your own credibility. Jurors vote immediately on each question and answer. They do not wait for closing. Stretch the rule of probabilities too far, and jurors side with the witness. That loss is toxic.
Stern rejects the idea of saving the punch for closing. Jurors form opinions early. Summation is not where you win jurors— it is where you arm your supporters.
James McComas builds on this idea with Dynamic Cross- Examination. Instead of avoiding“ why,” answer the why questions in a way that advances your case theory.
Identifying inconsistencies wins the $ 5 prize. Explaining why they exist wins the $ 500,000 prize.
McComas treats cross as dialogue— a fight or a dance. He uses open-ended questions strategically. The lawyer remains in control by choosing topics and leveraging answers.
Dynamic cross requires understanding witness psychology:
• Who does this witness want to be?
• What is the agenda?
• What motivates the testimony?
Intensity shifts by topic. Stern and McComas converge on several points:
• Expose motivation.
• Advance your theme.
• Engage the central issue.
7. McElhaney’ s Lawyer Accreditation Cross
Jim McElhaney says the real purpose of cross is to show the jury that you are the better witness. Cross accredits you. You functionally testify during voir dire, opening, cross, and closing— without ever being sworn. Every exchange is a volley:
• If you exaggerate, you lose.
• If you quibble, you lose.
• If you check a fact carefully, you win.
• If you help a witness find something in a document, you win.
• If a witness evades, rejoice. It shows something.
• If a witness says“ If you say so,” that is surrender.
50 The Trial Lawyer