Trial Techniques – The Art of Cross-Examination – Part XI

Rule No. 7 of 12: The successful cross-examiner listens to the witness’s direct testimony.
When a witness is called by the other side to testify against one’s client, one must be very careful to listen to that witness. Even if counsel has had the benefit of taking the deposition of the witness and has a beautiful outline to be used for anticipated cross of the witness, counsel must nonetheless listen very closely to the actual testimony given before the jury. It may be that the witness changes their testimony or offers less damaging testimony than was anticipated. It would make little or no sense to adhere to a pre-prepared outline script in such a situation. Counsel must be willing to adapt a proposed cross-examination outlined for any witness. The best way to do this is to listen carefully to what the witness is saying.
During cross-examination, counsel must keep his notes to a minimum because taking notes can be distracting and can interfere with listening to what the witness is saying. If proper investigation and discovery has been done, counsel should know what the witness will say in any event, but there have been many cases where witnesses do slightly alter their testimony, thus causing for a change in the cross-examination of that witness. Listening is the key to this rule.