Real Estate Blog

“You ordered the Code Red.”

Few courtroom scenes are as instantly recognizable as the climactic cross-examination in A Few Good Men. Lieutenant Daniel Kaffee confronts Colonel Nathan Jessup about the death of a young Marine in Cuba. What begins as a controlled examination steadily tightens until Jessup, indignant at having his judgment questioned by a junior officer, finally admits the fact the entire case turns upon.

The scene is Hollywood. The lesson is not.

What makes an effective cross examination? Effective cross-examination is built on preparation, control, and a deliberate sequence of questions. Rather than asking a witness to agree with a lawyer’s ultimate conclusion, the lawyer establishes one fact at a time, uses documents and other evidence strategically, and stops once the necessary facts are in evidence.

After twenty-five years of trying cases—and six years serving in the Navy JAG Corps, as Kaffee did—I have learned that effective cross-examination rarely depends upon a brilliant question conceived in the heat of battle. Quite the opposite. The best crosses are usually won before you stand up. The famous question is merely the destination. The art is building the road that leaves the witness nowhere else to go.

What Is the Goal of Cross-Examination?

Young lawyers sometimes approach cross-examination as an opportunity to argue with a witness. It isn’t. It is an exercise in control.

On direct examination, the witness is supposed to tell a story. On cross, the lawyer tells the story, using the witness primarily to authenticate it one proposition at a time.

That distinction changes everything.

An effective cross-examiner generally does not ask:

• “What happened next?”
• “Why did you do that?”
• “Can you explain what you meant?”

Those questions surrender the courtroom to the witness.

Instead, the cross-examiner builds with propositions:

• You received the letter on Monday.
• You read it.
• You understood the deadline.
• You did not respond by the deadline.
• And you never asked for an extension.

Each question should ordinarily establish one fact. Each fact should advance the theory of the case. And the witness should have as little room as possible to escape the proposition embedded in the question.

Kaffee understood this instinctively during the climactic examination of Colonel Jessup. He is not inviting Jessup to educate the jury. He is constructing a box around him.

How Should a Lawyer Prepare for Cross-Examination?

The most useful question in preparing a cross is often not “What should I ask?”

It is: What do I need this witness to establish?

Start there and work backward.

Suppose the ultimate proposition is that a defendant knew about a contractual deadline and deliberately ignored it. Asking, “You deliberately ignored the deadline, didn’t you?” may accomplish very little. The witness will deny it, explain it, or quarrel with the characterization.

Instead, establish the pieces:

• The contract contained the deadline.
• The witness signed the contract.
• The witness received the reminder.
• The reminder specifically identified the deadline.
• The witness read the reminder.
• The deadline passed.
• No performance occurred.
• No extension was requested.
• No objection was made until after the deadline.

By the time those facts are established, the lawyer may not need the witness to agree with the ultimate conclusion at all. The jury can reach it.

That is frequently stronger than forcing the witness to say it.

Why Does a Witness’s Personality Matter on Cross-Examination?

This is where A Few Good Men becomes particularly instructive.

Kaffee does not defeat Jessup merely by knowing the facts. He understands the man.

Jessup views himself as the embodiment of military discipline. He believes his authority is necessary, his decisions are justified, and the people questioning him are incapable of understanding the burdens he carries.

That personality becomes the engine of the cross.

Kaffee ultimately places Jessup in a position where maintaining the defense requires him to accept a proposition inconsistent with the identity he has spent the examination defending. Jessup’s pride does the rest.

Real witnesses are rarely as theatrical as Colonel Jessup, but personality matters enormously.

Some witnesses desperately want to appear knowledgeable. Others want to appear reasonable. Some cannot tolerate being challenged. Some reflexively agree. Others reflexively disagree.

Experts may be particularly reluctant to concede limitations in their expertise. Corporate representatives may feel compelled to defend decisions they did not personally make.

The effective cross-examiner observes those tendencies and adjusts.

Cross-examination is therefore partly law, partly preparation, and partly human psychology. You are examining not simply testimony, but a person.

How Should Lawyers Handle an Evasive Witness?

One of the most common mistakes in cross-examination is accepting a witness’s invitation to fight.

The witness gives an evasive answer. The lawyer becomes irritated. The lawyer asks the question again, only louder. The witness resists. Soon lawyer and witness are arguing while the judge and jury watch.

Usually, the witness wins that exchange.

A lawyer does not establish control by appearing angry. Control is demonstrated by not needing to become angry.

If a witness refuses to concede an indisputable fact, the better response is often the document.

• “You testified that you never received notice?”
• “Yes.”
• “Let me direct your attention to Exhibit 14.”

Now the fight is no longer between lawyer and witness. It is between the witness and the evidence. That is a much better fight.

Why Should Cross-Examination Questions Be Short?

The longer the question, the greater the opportunity for trouble.

A good cross-examination question often contains a single fact and can be answered yes or no:

• You were present.
• You heard the conversation.
• You took notes.
• Those are your notes.
• You wrote them that afternoon.
• Now look at the third sentence.

Simple questions create rhythm. Rhythm creates control. And control makes the important question more powerful when it arrives.

Lawyers sometimes believe complexity sounds sophisticated. In a courtroom, complexity frequently produces the opposite result. If the judge or jury has to diagram the question before understanding it, the question is probably too long.

Cross-examination should sound almost conversational while being extraordinarily deliberate.

How Should Lawyers Use Documents During Cross-Examination?

A powerful document can destroy a witness’s credibility—but only if the lawyer lets it.

Too often, lawyers reveal the document too early.

For example:

• “Didn’t you write in this email that you knew about the problem?”

The witness immediately knows where the examination is going and begins explaining. There is usually a better way.

First secure the testimony:

• You didn’t know about the problem?
• No one told you?
• You never discussed it?
• You’re certain?

Then establish the document.

• You wrote this email?
• That’s your email address?
• You sent it on March 12?

And only then reveal the language that contradicts the testimony.

The sequence matters because impeachment works through contrast. The greater the distance between the witness’s commitment and the objective evidence, the more powerful the contradiction becomes.

Do not rescue the witness from that distance.

Sometimes the Best Question Is the One You Never Ask

This may be the hardest lesson for trial lawyers. You have established every fact necessary for your argument. The witness is trapped. The jury understands exactly what happened.

And there is one irresistible question remaining:

• “So you breached the agreement, didn’t you?”

Don’t ask it.

The witness will say no. Why give the witness the opportunity?

One of the central distinctions between cross-examination and closing argument is that cross-examination establishes facts; closing argument explains what those facts mean.

When the necessary facts are already in evidence, save the conclusion for closing, when the witness no longer gets to answer.

Know When to Sit Down

Hollywood demands a confession. Trials do not.

In A Few Good Men, Kaffee needs Jessup to admit that he ordered the Code Red. The drama requires the final confrontation. Most real cross-examinations do not.

 If you have established the three or four propositions necessary to your case, there is no rule requiring another 20 minutes of questions.

Some of the strongest crosses I have seen—and conducted—end almost abruptly. The lawyer obtains the admission, pauses, looks at the witness, and says:

“No further questions.”

There is power in that restraint.

Every additional question creates another opportunity for the witness to explain, rehabilitate, or dilute what you just accomplished.

When you hit paydirt, stop digging.

Why Is Preparation Critical to Effective Cross-Examination?

The enduring appeal of the A Few Good Men scene is the explosive finish. But trial lawyers should pay attention to everything that happens before it.

Kaffee identifies the contradiction in Jessup’s story. He understands the witness’s personality. He establishes seemingly innocuous propositions. He narrows the available explanations. He increases the pressure gradually.

And only after constructing the trap does he spring it.

That is effective cross-examination.

Twenty-five years in courtrooms have convinced me that the great cross is usually not a performance of spontaneous brilliance. It is the visible product of invisible preparation.

9 Principles of Effective Cross-Examination

1. Know the record.
2. Know the documents.
3. Know the testimony.
4. Know your objective.
5. Know the witness.
6. Ask short questions.
7. Establish one fact at a time.
8. Do not argue when the evidence can argue for you.
9. And when you have made your point, sit down.

Every trial lawyer would love to have the cinematic moment when the witness finally breaks and admits:

“You’re damn right I did.”

But effective advocacy does not require the witness to order the Code Red.

Sometimes you only need to prove that he did.

Mr. Kraus is a shareholder at Chamberlain Hrdlicka. He is a Texas real estate litigator, triple board certified by the Texas Board of Legal Specialization, with more than 25 years of experience including six years as a Navy JAG. This article provides general information and is not legal advice.