By the end of cross, the jury should think you are:
Careful. Fair. Honest. Knowledgeable. You become the guide worth following. For plaintiffs’ lawyers, credibility is everything— especially when asking for serious money for non-economic damages and psychological injuries.
So, What’ s My Approach?
I usually start with hitchhiking— gain admissions. Then I switch to yes / no. Sometimes it is soft to accredit myself. Sometimes it is hard to discredit the witness. I use storytelling and constructive cross, watching my tone, staying on the high ground.
Regardless of my cross strategy, some things always hold true, and I’ m passing them on to you now:
• Leave your anger at the door.
• Lower your voice. Move closer. These are intimate truths you’ re sharing.
• Practice your cross in your mind. Know your key points. Be ready if the witness explains. Have impeachment documents ready.
I save destructive cross for the most important points and witnesses.
When I go hard, I position myself at a right angle, square to the jury. I don’ t look at the witness. I use no notes. I testify to the jury through the witness.
Everyone knows when I assume that position I am going to quietly, but firmly, bring just a little hell with me.
Then in closing, I stand in the exact same spot. That’ s anchoring.
Cross-examination is not a single technique. It is a repertoire. Use different pitches. Know your judge. Know yourself. And above all, remember that jurors are voting every moment. Make sure you give them something worth voting for.
Bill Barton is a nationally recognized trial lawyer and founding partner of Barton Trial Attorneys, where he represents clients in complex injury and civil rights litigation. With more than three decades of courtroom experience, Bill has tried cases in state and federal courts across the country and is sought after as a speaker and teacher on trial advocacy. His book, Recovering for Psychological Injuries, is widely regarded as an authoritative resource on the assessment, presentation, and proof of mental and emotional harm claims.
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