Keys to Cross-Examining a Plaintiff

Written by: Samuel Samson Sykes, II, Esq.

As with most things in life, success can be achieved by working tireless to implement a plan through meticulous preparation.  A successful cross-examination of a plaintiff at trial is no different.  In order to ensure success, a defense attorney needs to create a plan of attack, and then work to prepare that plan for trial.  While expert testimony and strong, concise arguments are crucial to the defense of a case at trial, there is nothing more powerful to a jury than a thorough, sifting, and eviscerating cross-examination of the plaintiff.  Likewise, a poor cross-examination of the plaintiff can not only bolster the plaintiff’s case, but can also lose an attorney’s credibility and trust of the jury, that a defense attorney should work to build from the moment the jury venire enters the courtroom for voir dire.  With so much at stake, the importance of creating a plan for cross-examination, and preparing to ensure that the plan is executed precisely, is paramount in defending a case at trial.  Fortunately, experienced litigators live for the opportunity to cross-examine a plaintiff at trial, as they know nothing derails a plaintiff’s case more than a well-executed cross-examination.  Further, strong litigators are confident that their successful cross-examination will be achieved, because they thoroughly prepare to execute their plan of attack at trial.

A defense attorney’s plan for cross-examination of the plaintiff is not something that should be formulated at the close of discovery.  In fact, the plan for cross-examination should not be formulated during discovery, or following the plaintiff’s deposition.  The plan for the plaintiff’s cross-examination is something that should be formulated by reading the plaintiff’s complaint for damages, and review of initial file materials from the client.  The allegations of the plaintiff’s complaint are all that a litigator should need to determine the plan of attack at trial, and the file materials will allow the attorney to confirm the strategy for cross-examination.  While the overall goal in cross-examination is to impeach and discredit the witness, the plan for doing so will depend on the allegations asserted by the plaintiff and the facts of each case.  For example, in a rear-end car accident with minor damage, the plan will be to discredit the plaintiff by showing that the subject accident could not have caused the alleged injuries.  In a slip and fall case, the plan will be to show that either the plaintiff had equal or superior knowledge of the hazard, that the existence of the hazard cannot be proven, or that the alleged injuries did not occur as the result of the alleged incident.  In a case involving catastrophic injuries, the plaintiff’s cross-examination will focus on attacking allegations of diminished earning capacity and quality of life, while death cases will focus on establishing co-morbidities.  Central to any plan should be the potential for establishing contributory negligence on the part of the plaintiff.  In many ways, the plan for the plaintiff’s cross-examination at trial is the defense theme of the case, and it should be the first thing established by defense counsel during initial review of the case.  Once the plan is made, the entirety of the defense of the case is then devoted to preparing that plan for cross-examination at trial.

Preparation for the plaintiff’s cross-examination does not start when an attorney sits down to draft the outline to use during trial.  Preparation for cross-examination is done with the discovery that is propounded on the plaintiff and medical providers, with the depositions that are taken during discovery, the experts that are identified and retained, and even during the preparation of defense witnesses for their depositions.  Once the plan is established by reviewing the allegations of facts of the case, all discovery needs to be tailored to the theme of the case, in order to obtain all information necessary to eviscerate the plaintiff on cross-examination.  It is defense counsel’s job to ensure that the discovery process is used to obtain all evidence available to implement the plan of attack at trial.  It is this type of preparation for cross-examination that allows for the execution of the plan to be conducted thoroughly, smoothly, and effectively at trial.

Any litigator will agree that a well-prepared and executed cross-examination at trial is the most satisfying part of the job.  Preparation is so important, because at trial a plaintiff will do anything and everything to try to prove the validity of the alleged damages to the jury.  Execution of a well-crafted cross-examination is equally dependent on how it is implemented, as it is what is discussed.  The plaintiff may be exposed as a complete liar, but if defense counsel comes across as a bully or a jerk, the jury may be equally turned off by the attorney as they may be the plaintiff.  Further, jurors do not want to feel that their time is being wasted, or that their intelligence is being insulted.  Therefore, the following analogy is crucial for a defense attorney to remember and understand: in the war of trial, cross-examination is not a campaign, but a raid.  The goal is to get in, get the specific information you need, and get out.  The nuggets obtained on cross should be used during closing arguments, to argue why the plaintiff has not met the burden of proof, and why the defense’s theory is correct.  However, to be able to carry out a flawless raid, preparation has to begin with the questions asked during discovery, records obtained and reviewed, and witnesses deposed, so that a concise, leading, and powerful cross-examination can be conducted at trial.  In fact, a well-executed cross-examination should only elicit the following response from the plaintiff:  “Yes.”  Any deviation from that response by the plaintiff, should allow for direct reference to evidence and prior testimony, that will show the jury that the plaintiff is not telling the truth.

In conclusion, while a cross-examination at trial should be quick and dirty, it should be the end result of a thorough and exhausting process of fact-finding and strategic planning.  That plan should be the first thing that goes through a defense attorney’s mind when reviewing a case, and the entirety of the discovery process should be implemented to carry out that plan.  The good news is, since impeaching a plaintiff at trial is so enjoyable, doing the work necessary to get to that result is second nature to the attorneys at Hall Booth Smith, P.C.