One of the time-honored rules of cross-examination of a witness is “never ask why.” Asking “why” or “how can you say that” or “please explain” gives a witness the chance to launch into a poignant, self-righteous, or injured monologue. But sometimes you should break that rule.
The goal of cross-examination is to control what information the jury gets from the witness. If the witness is controlled, the jury will hear the points the cross-examiner wants to make. Without that control, the witness will present his own version of events to the jury.
The “why” question gives the witness a chance to make a speech during examination, which is exactly what you don’t want to happen.
But there are times you shouldn’t honor the “no why” rule, such as when
The witness needs a bit of room to show his or her unpleasant side. When you know that the witness’ explanation will be unconvincing, and possibly even irritating to the jury. You may have learned from deposition that this particular witness has a singularly unimpressive answer to the question “why?” Many witnesses are glib and convincing for a short time on the stand, but wear out their welcome as they spend more time talking to the jury.
There’s no downside. Some “why” questions are without risk, because there is no plausible explanation. In general, if a witness has been backed into a corner so that the question “was that fair?” cannot be answered, you’ll be safe in asking “why?”
The answer is known and helpful. If you know that the answer helps your case (because the question has been asked earlier during deposition, or there is a signed statement or grand jury transcript as a back up), ask a “why” question. This, incidentally, provides a good reason to ask “why” questions often during depositions.
Asking “why” at the right time can be a valuable weapon in the arsenal of a confident examiner, but do it sparingly.
For more ”rules” of cross-examination and when to break them, check out CEB’sEffective Direct and Cross-Examination Book, chap 4. CEB also has an excellent program that covers getting your own witness ready to handle cross-examination, Preparing Witnesses for Deposition and Trial, available On Demand.
This material is reproduced from Julie Brook’s blog entry, (Almost) Never Ask Why, on the CEB Blog December 19, 2012. Copyright 2012 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site: CEB.com.