Killing it at Cross-Examination: The order of question decides whether you win
Cross examination is kinda my favorite, read about what I have learned from my practice.
Darnell Smith: “A cross-examination is not a list of questions; it is a sequence. Change the order and the same questions accomplish nothing.”
Legal scholar John Henry Wigmore, slightly more accomplished than Darnell Smith, called cross-examination the greatest legal engine ever invented for discovery of truth. That is big claim for what is, mechanically, just a person asking questions of another person in a room.
So let me take the mystique out of cross and tell you what it actually is, what it is actually for and how I build a cross.
What cross-examination actually is
Cross examination is questioning a witness you did not call. It happens in discovery and at trial. Good cross examination uses leading question, or questions that contain the answer you want in time (e.g. “you were married in May 2012” instead of “when were you married?”).
That single difference is the whole ballgame. On direct examination the witness tells their story. On cross, I tell the story and the witness confirms or denies it. Control of the narrative moves across the table. The purpose of cross examination is to:
extract information you cannot get anywhere else, and
test credibility to show the judge a person cannot be trusted.
Here is the things most people miss: those two jobs are in direct conflict with each other. A witness who feels safe will hand you information. A witness who feels attacked will attempt to protect themselves. So you cannot do both jobs at once, and you certainly cannot do them in whatever order the question happen to occur to you.
You do the extracting first, then you test the credibility. Always in that order.
Step one: harvest, while they are generous
I start every cross by collecting the concessions the witness is willing to give me.
At the beginning of a cross, the witness wants to look reasonable. They want to appear fair-minded, co-operative, like the sensible one in the dispute. That instinct is worth a great deal, and it has a short shelf life.
So that is when I ask for the helpful things. Which parts of the parenting do they defer to my client on? That they must trust my client if they are deferring that? What financial contributions that acknowledge? Which of my client’s contributions to the home they accept?
None of this is confrontational. It should feel like an easy conversation, because if it feels otherwise, the witness will stop volunteering and start self preservation.
After I start questioning the witnesses truthfulness, test their reliability and point out their inconsistencies, the exact same questions is responded with “I don’t recall”, “I’m not sure” and nothing more. The window closes and it does not reopen. Harvest first.
Step two: lock the doors
Once I have what I need, I lock the witness into the position that everything they have said and written is accurate.
This is counterintuitive to people watching. I am asking the witness to affirm their own credibility, and they are delighted to do it. That is the point. They will often go to far.
Imagine your spouse sitting on the stand. If I ask the following questions, do you agree that they will answer ‘Yes’:
Q — You affirmed to tell the truth today? A — Yes.
Q — That affirmation is binding on your conscience? A — Yes.
Q — You've sworn three affidavits in this proceeding? A — Yes.
Q — You reviewed each of them before signing? A — Yes.
Q — You made sure you understood everything in them? A — Yes.
Q — You didn't sign anything you weren't confident was accurate? A — Yes.
Q — When you're co-parenting, it's important that both parents are truthful with each other? A — Yes.
Q — So your messages to my client have been truthful? A — Yes.
Every one of those answer is a door closing behind them. The witness cannot later tell the judge that an affidavit was rushed, or that their lawyer drafted it, or that a text was written in anger and shouldn’t be taken literally. They have already testified that they meant all of it.
Nobody communicates with the care of a sworn affidavit in every text message they send at 11pm. Nobody. And now this witness has told the court that they do.
Step three: erode
Now I show the errors. Small ones first that I have documentation of.
A date that is off by two weeks. A dollar figure in the affidavit that doesn’t match the banks statement. A text message that says the opposite of what the affidavit says. Something they swore they included that isn’t there.
Each error is individually trivial. That is fine, almost better. I am not trying to win on any of these points. Rather I am demonstrating a pattern and have the witness feel the weight of the accumulation.
Q — Paragraph 14, you say you picked up the children on the 12th? A — Yes.
Q — Your text message that day says you were in Kelowna. A — I might have the date wrong.
Q — But you told me you reviewed this affidavit carefully. A — I did.
Q — And made sure you understood everything in it. A — Yes, but —
Q — Let's look at paragraph 19.
What happens next is predictable. The witness stops treating each question as a question and starts treating it as an attack. They begin defending rather than answering. They stop saying “I don’t know” and start guessing, because admitting another gap feels intolerable. They over-explain. They argue with the premise. They give me speeches.
That shift, from answering to defending, that is the objective of the exercise.
Step four: now ask what you came to ask
A witness in defensive mode is a witness who overstates.
So that is when I go to the evidence that actually matters. The income. The incident. The thing they need the judge to believe. And they do not give me a careful, measured, defensible answer, because they have stopped being able to. They give me the version that protects their position, which is almost always the version that goes further than supportable.
Then I put the documents up against it.
Q — So in the spring of 2025 you were financially strapped? A — Yes.
Q — That is why you unilaterally decreased child support? A — Yes.
Q — But you understand child support benefits the child? A — Yes.
Q — So you were presumably at this time cutting back all descretionary spending? A — Yes.
Q — Turn to your Visa statement of March 2025, do you see the entry at March 13, 2025? A — Yes.
Q — What does it say? A — It is a $435 expense for Black and Blue steak house.
Q — Was that a date you were on? A — Yes.
Q — So you can spend $435 on a date over paying child support? A — …
That is how a handful of typos and a wrong date turn into a finding that the court cannot rely on this person's evidence on the issue that decides the case. Not because the typos mattered. Because the witness showed the judge, in real time, what they do when their account is tested.
It is a process, but not an easy one
I would be doing you a disservice fi I stopped there, because this technique has failure points, they are ugly and learning at trial is a bad time to learn.
Judges are watching you and the witness. There is a very fine line between rigorous cross and bullying, and it is drawn differently for a self-rep, an elderly parent, or a witness who is scared. Cross a sympathetic witness too hard and you do not damage their credibility, you become unlikeable. The judge stops seeing a credibility issue and starts wanting to protect the witness from a bully. You have to earn the right to cross aggressively, hence start small.
Where there is family violence, this can be actively harmful. Aggressively destabilizing a survivor is not advocacy, it is a continuation of the harm. Courts are increasingly alive to the litigation conduct as a form of abuse. Trauma-informed cross-examination is a genuinely different craft, and there are restriction on who may conduct it. It is one of the main benefits of having a lawyer, they become the bad guy, not you.
Never ask a question you don’t know the answer to. This is an age old adage of cross-examination. Every step above depends on holding a smoking gun. Without documents this is not a cross-examination, it is a fight, and the witness gets to say whatever they like and get away with it. There is one exception to this rule, when their credibility is so bad, it does not matter what they say. To quote Tina Tuner, again more accomplished than Darnell, this one exception is “simply the best!” It is like reaching nirvana in cross examination.
What this mans if you’re the one in cross
Most people reading this are not lawyers. You are someone, probably exquisitely good looking, whose going through a separation. You probably realize that you are likely to undergo cross examination from your spouse’s lawyer in the future.
If you are facing the possibility of cross examination, you want legal support. The different between being prepared for cross examination and not is huge. This article cannot possibly explain all the nuances of cross. Nor do I want to publically give away all my tricks!!! But if all else fails, read my blog post on dominating your discovery.
My office prepares every client for discovery and trial before they walk into the process. If you have a discovery or a trial coming up, or if you are wondering whether the other side’s evidence will hold up under this kind of pressure, call us at 604-584-0007. The first consultation is free.