118 THE ADVOCATE
VOL. 78 PART 1 JANUARY 2020
The authors replace Professor Younger’s ten commandments with three
basic rules of cross-examination. One of the greatest benefits is that, unlike
the commandments, a lawyer will know, in real time, when he has
breached any of the three rules. Following Professor Younger’s commandments,
a lawyer usually will not discover that a commandment has been
broken until after the question has left his lips in the courtroom, such as
asking one question too many.
The authors’ three rules of cross-examination are:
1. ask questions that progress from a general topic to a specific fact;
2. ask a question to establish one specific, accurate fact; and
3. ask only leading questions.
Reliance on the above rules provides for real-time learning on behalf of
the trier of fact. In the heat of litigation, the rules are easy to follow. The
rules prohibit counsel from asking any questions starting with “what”,
“where”, “when”, “why”, “who” or “how”, all open-ended questions. Such
questions open the door for the witness to add whatever facts they wish to
their answer with impunity. Not coincidentally, the witness’s answer usually
either supports the opponent’s theory or destroys your own client’s theory
of the case.
The theory of the case guides all aspects of the proceedings, from the
beginning of the file to its end. It guides pre-trial discovery, picking jurors,
writing the opening and closing statements and every other aspect of the
case. The authors stress the importance of formulating the theory of the
case and preparing cross-examination as early as possible in the life of the
file. In the third edition the authors have provided more useful tips on how
to employ their system of cross-examination preparation in the first
instance, when the file is first opened, when witnesses are first interviewed,
when e-mails and correspondence are first received.
A frequent criticism of the work is that the preparation under the system
requires too much time and effort and is not failproof. But this criticism
ignores the reality that trial work is ninety per cent preparation. And even
the most finely prepared cross-examination may not necessarily win a trial.
In the prologue, the authors are quick to remind the reader to “be reasonable
with yourself. And with us.” Although it is sometimes a burden to prepare
cross-examinations under the system, it ultimately leaves the
cross-examiner with a clear, organized roadmap to reach certain intellectual
and emotional objectives at trial. In doing so, it relieves considerable pressure
on the day of trial. The authors also remind us that good cross done
consistently becomes great cross. If counsel lacks time to prepare ade-