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

Rule No. 4 of 12: The successful cross-examiner never asks a question unless he knows what the answer will be or doesn’t care what it is.
Unless counsel is fully prepared, has fully investigated the case and has conducted necessary discovery, this rule is difficult to follow. On the other hand, if counsel knows everything about the case then there is no reason why this rule cannot be followed and, in fact, it should be followed in all cases. Otherwise, disaster can strike.
There is an old story that illustrates the rule. A witness apparently in the 1800’s witnessed a fight between two men. It was dark outside and the witness had a poor angle on the fight. (The defendant was being tried for biting a man’s ear off and the witness admitted that he did not see the defendant bite the man’s ear off.) Counsel on cross-examination successfully was able to show that the witness could not see the alleged assault and battery for which the defendant was being tried. Rather than sitting down after establishing this on cross-examination, counsel asked one question too many. “So if you didn’t see him bite it off, how do you know he bit the ear off?” The witness answered: “Because I saw him spit it out.”
If you know what the answer is to every question, you are safe to ask the question, but if you do not know the answer you should not be asking the question. By asking questions which will give safe answers not detrimental to your case, you are better off than proceeding blindly into areas that are not safe or known. question, you are safe to ask the question, but if you do not know the answer you should not be asking the question. By asking questions which will give safe answers not detrimental to your case, you are better off than proceeding blindly into areas that are not safe or known.