Why I Gave Up Cross-Examination (and What I Did Instead)

Brilliant cross-examiners are the rock stars of the legal profession. Every young lawyer wants to be one. I certainly did, but for me, it was not to be.

It wasn’t for lack of trying– I studied all the moves, read all the books, even endured Gary Watson’s brutal Intensive Trial Advocacy Workshop (the only time in my life I ever considered quitting anything) and got both the certificate and the tee-shirt to show I didn’t quit.

Sure, I got the necessary admissions and knocked down the worst of the bad evidence, but only with an inordinate amount of preparation. The results were what I needed, but the process was never pretty. You could see it on the judge’s face, you could see it in the body language of the clerks- they were watching an elephant being hacked to death with a butter knife.

I would watch the master cross-examiners at work. They moved effortlessly and ruthlessly like wolves running down an elk, cutting off its escapes, draining its energy, until finally under the cold winter moon it stands and accepts the inevitable. Its fate had never been in doubt. Thus it is with the witness at the mercy of the master examiner.

From such lawyers, there is no escape even for the craftiest witness. There are at least four reasons. First, counsel knows more about the subject matter than does the witness (I was good at that part). Second, counsel has an instinctive, almost prophetic sense of what the witness is going to say next (this isn’t magic, it’s the result of a lot of hard work). Third, body language and an eye that telegraph that there is no escape. And finally, there’s a reactive instinct to capitalize, in a split second, on every slip and every gap. Gotcha. Gotcha. Gotcha. All of this may explain why a hugely disproportionate number of top cross-examiners were and are highly competitive athletes.

That was never me. On the social scale, I want to be friends with everyone, and on the intellectual side, I am an analyzer, a deeply reflective thinker. So, when you tell me something, I will initially likely take it at face value and want to ponder it and figure out how that fits into the general body of knowledge. By the time I come to the conclusion that you lied to me, you’re long gone.

This does not mean I was not a good lawyer, perhaps at times a very good one. It simply meant that cross-examination was not the gifting around which to build my career.

But there’s a whole other side to the story.

A funny thing sometimes happens even to brilliant courtroom types, mostly in chief, but sometimes in cross: a judge will stop them in full flight and tell them they can’t go where they’re obviously headed. Why not? Because they had failed to plead the issue in question. If an issue has not been clearly or implicitly pleaded, it’s off-limits.

Like all warfare, litigation depends on both strategy and tactics. The cross-examiner is a brilliant tactician. But he or she has to live with the plan which has been made by the strategists. In litigation, the foundation of the strategic plan is the pleadings. And the fine art of drafting pleadings calls for a number of aptitudes.

First of all, the draftsman must understand the “big picture” of the case, that is, he or she must have a clear and comprehensive grip on the available and likely evidence, and how it all fits together. Second, the draftsman must have a clear picture of the potential remedies a court might grant. Third, he or she must understand the entire law in a big-picture, organic sense so as to envisage which principles are relevant to the problem at hand and how the potential remedies speak to the problems.

Fourth, the draftsman needs to have in mind a clear roadmap of how the evidence can be turned into court-determined facts. (In law, nothing is a fact until the judge says so.) Fifth, the draftsman must understand the court’s “instinct for rescue”, and how to tap into that. Finally, the draftsman needs to put all that together in a coherent, persuasive, sensible, legally supportable, and interesting piece of prose called a pleading.

Powerful pleadings set up the court to say, “If this evidence is true, then we need to grant this remedy.” They’re also to set up the plays for the tactical courtroom counsel to extract positive evidence and shut down negative evidence. Although the latter is the flashy part, without the strategic foundation of the pleadings, it can’t be successful.

For me, drafting strategic pleadings was a sweet spot, setting up a compelling case. But for me to take the same pleadings and examine witnesses, I discovered, was at best inefficient and at worst a mistake. Strategizing a win was every bit as rewarding as dazzling in the courtroom, just not as glamourous.

All of this is not to argue that any one professional skill is more important than another. It is, however, to say that each of us needs to figure out where we shine, and where we don’t. Trying to be an opera star when you can’t sing or the first draft pick in the NHL if you can’t skate is just setting yourself up for heartache and disappointment.

The real question for every professional is simply this, “Am I playing to my strengths?” Forget the certificate on the wall. Just ask yourself this: “What was I put on earth to do?”

Do we need to talk?