One of the worst strategies on cross-examination is to make subtle points with the “brilliant” idea that you will tie everything together in closing. I have read about this principle and heard it taught at CLE so many times that it makes my blood boil. It is a widely accepted principle, but it makes no sense.
The idea is that if you sneak in some questions here and there on cross-examination that are helpful, you can then remind the jury in closing of the answers you got when you asked the damaging question in the middle of a long cross. What is the logical reason why this won’t work? If the jury doesn’t notice you asking the damaging question because you have slipped it in, why are they going to be persuaded in closing by your reminding them of something they won’t remember. Even if you had the transcript of the cross-examination to show them, their memory of your long and dull cross has been in their brains for several days, and you are not going to change their impression of it.
Instead of following this wrong advice, let’s look at the correct way to do it whether you are in trial or a deposition. Mark Lanier, who I interviewed in Turning Points at Trial, is currently trying a civil case against Johnson & Johnson and DePuy on behalf of plaintiffs who had hip replacement surgeries with DePuy hip implants that allegedly were designed badly.
Lanier was cross-examining the director of marketing for DePuy. His cross-examination took an entire day. Do you think he snuck in some subtle questions hoping to wrap it all together in closing? No. For the entire day, he had three themes. That’s it. And just so it was crystal clear for the jury and the witness, he wrote each theme on the top of a sheet of paper. Throughout the cross, he would return to the theme at the top of the paper and remind the jury what his point was. His three themes were 1) “I want the jury to hear from you how marketing/sales run the company, not science,” 2) the wording you used in advertising DePuy hip implants provided confusion instead of clarity, and 3) Johnson & Johnson and DePuy are companies that are intertwined (Johnson & Johnson is denying responsibility for what DePuy did).
In your next cross-examination, don’t hide what your themes are from the witness or jury. Set out your themes, have the documents to back of your points, and you will win your case during cross instead of pretending you can win it in closing by trying to tie together subtle points the jury won’t remember.