Vol. 77, No. 6, June
Dodd & Pozner on Cross-Examination Without Discovery, Part 2:
Using Direct Examination as 'Discovery'
There are many situations in which attorneys must cross-examine a
witness without the benefit of discovery. In this second article of a
three-part series, read how to treat direct examination of a witness as
"discovery" through various techniques, such as selective note taking
and focused listening to what your opponent asks, what the witness
answers, and how the parties communicate in tone, cadence, and
Roger Dodd & Larry
In Wisconsin we generally think of trials taking place after
extensive discovery, including depositions. In practice, however, there
are many circumstances in which attorneys will need to cross-examine
witnesses without having had the opportunity to depose them first. In
virtually all criminal trials, attorneys confront witnesses without the
benefit of a deposition. This often is true in juvenile and civil
commitment cases with strict timelines and in other cases, like small
claims, that frequently are litigated on limited budgets for lesser
amounts of damages. In these circumstances, a lawyer's ability to
cross-examine well without the benefit of a prior deposition often is
critical to success in the action.
In this second article in a three-part series, excerpted from Chapter
31 of their book Cross-Examination: Science and Technique
(Lexis Law Publishing), Larry Pozner and Roger Dodd lay out some
techniques for using direct examination as "discovery." [Ed.]
Note Taking During Direct Examination
Focused Listening. When the cross-examining lawyer
lacks discovery and the direct examination testimony is previously
unknown, oftentimes the trial lawyer tries to compensate by writing down
as much of the direct examination as possible. This is a natural
reaction. Since the lawyer on cross-examination had no prepared
chapters, she compensates by taking more notes. More notes = more
discovery = more preparation for cross-examination, or so the thought
process goes. But the trial lawyer cannot effectively listen, observe,
absorb the new material, and consider the impact of this witness on the
fact finder, all while writing copious notes. The value of lots of notes
is almost always less than the value of focused listening accompanied by
selective note taking.
Selective Note Taking. The cross-examiner does not
need to "learn" the entire direct examination. In almost all
circumstances, the trial lawyer is concerned with only parts of the
direct-examination, so encyclopedic notes are not productive. Only
selective notes are required. The decisive questions are: 1) which areas
are worthy of note taking; and, 2) how to actually take those notes.
When faced with the task of cross-examining the witness without aid of
pre-trial discovery, the cross-examiner takes selective notes solely to
assist in the cross-examination or occasionally, the closing
Taking Notes in a Chapter Format: One Chapter Per
Page. A pivotal issue for the cross-examiner is how to
effectively take notes during the "no discovery" direct
examination.1 There are several useful
systems. To be useful, any note-taking system must be efficient, meaning
it must produce notes of immediate use in forming cross-examination
chapters without inordinate time or effort.
One easy system for efficiently tracking the direct examination is to
take notes in a chapter form.2
Most direct examinations are conducted chronologically. Opposing
counsel can be expected to take the witness chronologically through
whatever topics the witness is expected to support. The opponent may not
realize it, but this pattern approximates the chapter method of
presentation. As a result, the cross-examiner has the ability to follow
and organize the direct examination for note-taking purposes.
In this system, effective note taking of a direct examination is a
paper-intensive process. The cross-examiner is going to need a lot of
paper, but she is not necessarily going to take a lot of notes. For some
unknown and ill-conceived reason, trial lawyers try to put as many notes
on as many topics as possible on one sheet of paper. The result is a
hodge-podge of note-crammed pages relating to every issue or topic
raised on direct examination. This is not a system. It is a recipe for
frustration. Random junk notes are not in a form to be immediately
useful in preparing cross-examination.
In using the chapter method of cross-examination preparation, the
lawyer has grown accustomed to the fact that every cross-examination
chapter deserves a separate page. No chapter will exceed a single page.
Each chapter will be contained on the front side only of the
page.3 There are good reasons to use the
same system for note taking during every direct examination and
especially during the direct examination of a witness for whom there is
no discovery. For starters, one system is better than two systems. A
single system is far easier to work with in times of stress.
When faced with a "no discovery" witness, the cross-examiner needs a
blank note pad. As the direct examination proceeds, the cross-examiner
breaks down her notes of the direct examination into chapters. All notes
on one chapter are on one page. On that page the cross-examiner notes
potential issues for cross-examination. What the cross-examiner needs
most is not a full rendering of the direct examination, but only the key
testimony on which to cross-examine, and the cross-examining lawyer's
thoughts on what to do. Undoubtedly, the cross-examiner's notes on a
single chapter will not fill the entire page. They will be truncated:
abbreviated. But each chapter will be on a separate page. Leave the
partially filled page as is. Lawyers should prepare their chapters of
cross-examination one chapter per page to avoid confusion and make
sequencing easier.4 Notes taken in the same
system afford the same advantages.
Why only put one chapter on a page? Why label the chapter name at the
top of the page? Remember, some of these notes may prove useful in the
cross-examination of other witnesses who are hours or days away from
The problem with noting more than one chapter to a page is that the
cross-examiner is led into cross-examining from a page of notes that
relate to many chapters. That will inevitably cause the cross-examiner
to follow the chronological order used by the opponent in conducting the
direct examination. Chronological order almost always is a mistake on
cross-examination.5 One of the biggest risks
of following a strict chronological approach based on a page of notes
taken during direct examination is that the cross-examiner will
inadvertently wander into areas on which she never intended to
cross-examine. Trying to cross-examine from a page containing notes on
many chapters also leads the cross-examiner into a series of one or two
question chapters. In other words, when the cross-examiner is looking at
the one or two points she had time to write down during direct, she is
led to think these are the only points worth making. One chapter = one
page = one system = less confusion = more control.
Note Ideas for the Potential Cross-examination. When
the lawyer takes selected notes on the direct testimony of a witness,
she is writing down what the witness said. But the testimony of the
witness is not a cross-examination. It is but a starting point. The
notes tell her what was said, but she is left to develop a plan on how
to use this information. She needs techniques that move her beyond the
direct examination into the possibilities for her cross-examination. In
moving from her notes to her cross-examination, she must recall that her
cross-examination is not limited by the exact chapters covered by the
direct examination - she is free to cross-examine on any area or topic
raised by the direct examination. It is entirely conceivable that her
cross-examination will cover facts never discussed anywhere in the
direct testimony. After all, the direct examination was designed to tell
the opponent's best story, not the entire story. The direct exam was
designed to leave out entire sections of the case, and to omit harmful
material even in the areas that were covered. It is the cross-examiner's
job to add, to bring out new areas deserving of consideration, and to
weaken, where possible, the points made by the opponent in
In addition, the motive, interest, or bias of a witness is always a
fair subject for cross-examination. As the cross-examiner listens to the
"no discovery" direct examination, she can add her own notes on motive,
interest, and bias. The trial lawyer may not have known who was to be
called, or what they would say, but once called she may well spot their
motive, interest, and bias. The credibility of every witness is at issue
and therefore is fair game for cross-examination. The witness may have
testified to things he or she could not know, or to things that are both
incredibly helpful to the opponent while being incredibly unlikely.
Testimony that defies logic, the physical laws of nature, or common
sense deserves to be cross-examined. In short, notes of direct
examination do not mark the bounds of potential cross-examination. It is
only a part of the whole.
The cross-examiner's notes of the direct examination were taken in
chapters. So the notes on the lawyer's thoughts belong on the same page
as the direct examination that spurred the lawyer's thoughts. Almost
immediately after writing the notes, she will need to use them, as it
will be her turn to cross-examine the witness. So what does the
cross-examiner write in her cross-examination column?
1) Note chapters that can safely be emphasized.
2) Note chapters left out of the story that counsel can have the
3) Note entire chapters that the witness will admit, even if not part
of the witness's direct examination.
4) Note logical inferences; since the witness said X, he must admit Y
5) Note contradictions with the facts, circumstances, witnesses,
6) Note facts relating to motive, interest, or bias.
The Testimony Begins: Keying-in on Voice Tone
Tone Is Important. One of the critical assessments
that the cross-examiner must make of each witness is the tone of the
answers the witness gives. Whether or not there is discovery, the lawyer
is always aware of the witness's tone of voice. Tone of voice gives her
insight into the witness's mind and when she has no discovery, she needs
all the clues she can get. Tone often schools the trial lawyer on the
witness's confidence level. Is the tone assured? Is the tone objective?
Is the tone laced with emotion? Is the tone uncertain? The lawyer can
better understand the degree that this witness feels tied to the
opponent or to his own story. The lawyer can thereby better judge the
degree of flexibility the witness is likely to demonstrate. She begins
to learn why the witness is here. She can now better understand the role
the witness is expected to play by the opponent.
The witness's tone can be an incredibly important clue to the
cross-examiner. Listen for voice tone changes as the direct examination
proceeds. Some parts of the direct will sound as though they have been
rehearsed. The lawyer may easily detect areas where there is a certain
assuredness in the witness's tone. The cross-examiner learns from this
tone where the witness is within his testimonial zone of comfort.
The Less Confident Tone as a Guide to
Cross-examination. The starting place is the witness's tone of
voice betraying the witness's lack of confidence in an area. Almost
every witness changes his tone when he becomes less confident about the
subject matter of the questioning. This tone change often occurs when
the witness is led into areas in which he does not want to go, or the
witness unintentionally strays into areas where he did not want to be.
When the trial lawyer hears this change of tone, she understands it as a
signal that this area may be a fertile area for cross-examination.
Wherever she picks up on a change of voice, it is vitally important that
she focus on the witness, not on her note pad. Whenever a witness
betrays in any manner a lack of confidence in his testimony, the
cross-examiner should be especially observant of the witness's word
choices, hesitation, and mannerisms. It is when the witness lacks
confidence in an area that the lawyer is most likely to hear the "oops"
testimony - the admission of confusion, the nonsensical assertion, the
fact that does not logically fit. Perhaps the witness is in an area he
does not want to discuss in detail. Perhaps his own uncomfortable role
in the case is about to be revealed.
The Confident Tone as a Guide to Cross-examination.
A confident witness tone in a particular area of testimony gives equally
valuable information on areas of potential cross-examination.
How can very confident, direct testimony in an area be a guide to
important and successful cross-examination? The answer lies in the
immediate analysis of how that particular testimony impacts the two
competing theories of the case. A witness may offer up information
(whether or not sought by the direct examiner) which either directly
aids the cross-examination theory of the case or which directly weakens
the opponent's theory of the case. The cross-examiner, recognizing the
witness's tone of certainty, may on cross-examination guide the witness
first into a repetition of the useful material and then an elaboration
of the topic. This cross-examiner's technique can be done in relative
safety, even without benefit of pre-trial discovery. The confident tone
ensures cooperation on cross.
Taking Cues From the Tone of the Examiner. The
cross-examiner can also receive important clues from the tone of the
opponent conducting the direct examination. When the tone of the lawyer
conducting direct examination betrays a lack of preparation or
confidence, it is a sign for the cross-examiner that the script of the
direct examination is uncertain, is not being followed, or is fraught
with hazards for the direct examiner. The opposing counsel's change of
tone is often attributable to the fact that the direct examiner knows
that there is danger in asking questions in this area because the
witness may not be supportive. Alternatively, the direct examiner may
not know how the witness is going to answer questions or what details he
will supply in areas where only the general answer is known. Once again,
this is fertile ground for possible cross-examination. The
cross-examiner must carefully listen for nuances in tone of the lawyer
conducting the direct examination.
Testimony That Conflicts with Testimony of Other Witnesses
The "extra" witness who is called to do nothing more than bolster
another witness may well provide opportunities for effective
cross-examination. First, has the witness said anything at variance with
the other witness called by the opponent on this point?
It is the rare witness who can testify about the entire case. Rarer
still are "no discovery" witnesses who can testify about the entire
case. Almost every witness is a niche witness. That is, he can testify
about single events or issues. His testimony will not span the entire
case. Most witnesses assume that if his testimony "sounds good" for "his
side," it must be assisting his side. The flaw in this reasoning is that
testimony can sound good but actually be quite harmful to the opponent.
This occurs because cases are almost always far more complex than any
one witness can envision. The testimony that protects one issue may
simultaneously assist the cross-examiner on another issue.
The niche witness will instinctually protect his niche, his
testimony, what he has to offer. While the witness is trying to protect
his testimony, he may testify to facts that may be destructive or
contradictory to other niche witnesses, without realizing that he has
done damage to the lawyer who has called him on direct examination.
There is a technique to spot and exploit this weakness: Listen for areas
in which the witness is at odds with another witness called by the
opponent. In cross-examination take this witness back into that chapter
and cross-examine him so that he repeats the portions of testimony that
are at odds with testimony by another one of the opponent's witnesses.
This technique effectively attacks the credibility of both witnesses,
each without a clue as to why their testimony is being reinforced by the
The Overly Precise Question
Is opposing counsel asking a very precisely worded question? This is
often a signal that this lawyer and the witness have agreed that the
witness can truthfully and safely answer the question if, but only if,
the wording is very precise and very narrow. What is not being said may
be very apparent to the cross-examiner, who may reveal the misleading
nature of the direct testimony by pointing out the very narrow nature of
the opponent's question, and then using a series of leading questions
that flush out the hidden facts. Look for this most often with expert
Roger Dodd practices law in Valdosta,
Ga., and is board certified in both civil and criminal law by the
National Board of Trial Advocacy. His practice includes criminal
defense, family law, plaintiff's personal injury, and wrongful death
cases, and representation of both plaintiffs and defendants in medical
malpractice claims. He is a fellow of the American Academy of
Matrimonial Lawyers and is listed in the Best Lawyers in America.
Larry Pozner is past president of the
National Association of Criminal Defense Lawyers. His Denver, Colo., law
practice includes criminal defense and complex civil litigation. He is
listed in the Best Lawyers in America. As a frequent commentator on
legal issues, Pozner has appeared on the "NBC Nightly News," the "NBC
Today Show," CNN, "Meet the Press," Court TV, and the "Jim Lehrer News
This article is excerpted from Chapter 31 of Cross-Examination:
Science and Technique by Larry Pozner and Roger Dodd (Lexis Law
Publishing). Due to space, the material has been heavily edited. This
series will conclude in July with Part 3.
The cross-examiner is, of course, listening for the fumbles. Where is
the answer that catches the direct examiner by surprise? When the
cross-examiner hears or sees the surprise, she needs to immediately
focus on the precise question and the precise answer it produced. The
opponent is now in trouble and she must silently observe what facts can
assist the cross.
Most direct examinations, by nature, appear less goal-directed than
cross-examination. Direct examination must be conducted using open-ended
questions. As a result, direct examinations can more easily meander or
go off on a tangent because of miscommunications between counsel and his
witness. Facts that support the cross-examiner's theory of the case or
hurt the opponent's theory fall out and the listening cross-examiner
must pick up on them and build chapters based on these fumbles.
Answers That Veer Off Course
A direct examination can appear to go off on a tangent. This usually
happens either because the examining lawyer has taken the witness into
unrehearsed territory or the witness has answered a direct examination
question unresponsively. The direct examination also may go off the
script when the witness continues to testify after the initial question
has been answered. These occurrences are some of the most revealing
times of the direct examination for the cross-examiner. The
cross-examiner may recognize when this is happening by the words being
said, or the tone exhibited either by the witness or the
direct-examiner, or by the facial expressions of the witness or the
The unexpected tangential information and the proffered details that
a witness gives to the direct examiner may well open up areas of
cross-examination. These new areas of cross-examination can undermine
the general impact of the direct examination just concluded. This
happens because the jury has witnessed the direct examination go astray.
They realize there was a slip-up or something that did not fit, and when
the cross-examiner takes advantage of the slip-up by pulling out more
information in that area, the jury highly values this information. In
essence, the testimony becomes more important because it leaked out.
Listen for the details that are volunteered.
An example: The plaintiff has sued the defendant for damages arising
out of personal injuries suffered in a car accident. The defendant's
vehicle hit the back of the plaintiff's vehicle at a stoplight on a road
that had a moderate slope. From the plaintiff's point of view, she was
"slammed into" as she sat at the stoplight. From the defendant's point
of view, she "drifted into" the plaintiff at "idle speed." Defense
counsel seeks to minimize the impact. Because the slope of the road
would affect the speed of the "drift," the plaintiff's lawyer had
conducted an on-scene investigation that included the exact degree of
slope of the road.
The defendant calls an eyewitness in an attempt to show that this was
a low-speed collision. The plaintiff had not deposed this witness
because of the expense relative to the size of the likely damages. The
effort to interview the witness had been unsuccessful. When called by
the defendant, the witness testifies that the collision was not a
substantial collision. On direct examination, the opponent asked the
witness about the speed of the defendant's vehicle when it collided with
the rear end of the plaintiff's vehicle.
"Q. How fast was Mrs. Rupert's car (the defendant) traveling?
A. Not too fast. The road is pretty much flat there at the light and
she really just drifted into the plaintiff's car."
At this point, defendant's counsel has received the answer he was
seeking - the defendant's car "drifted" into the rear of the plaintiff's
car. But the witness has added an unasked fact: the slope of the road.
The witness has testified erroneously concerning the slope of the road.
Her tone was more hurried, but not dramatically so. Some damage has been
done, but the misstep should be further exploited on
The cross-examiner heard the words concerning the slope of the road
and also noted the abrupt shift of subject matter and the change in tone
and pace of the direct examiner's words, and realized that this chapter
concerning the slope of the road would be productive on
cross-examination. This "no discovery" witness can be safely and easily
asked now about "the road is almost flat there." A way to spot the
miscommunication: The issue is not tied up by the opponent. Instead the
matter is dropped.
When the Lawyer Interrupts His Own Witness
The cross-examiner often sees interruptions by the examining attorney
as he attempts to steer the witness back into safe or rehearsed
territory. It is important to object to any such interruption that cuts
off an answer. When the cross-examiner knows the opposing counsel is
uncomfortable in an area, she needs to give the witness more room to
deliver damaging material. This interruption was designed to protect the
lawyer. By allowing the witness to continue, the cross-examiner
potentially opens up further areas for cross-examination.
There are at least two lessons to be learned when the direct examiner
interrupts his own witness. First, and most obviously, is the lesson
that the witness had either intentionally or unintentionally wandered
into an area that the direct examiner did not want to pursue in direct
examination. This tells the cross-examiner that this is an area that
should be considered for cross-examination.
The second and less obvious lesson is that this is an opportunity for
the cross-examiner to observe how the witness reacts to an interruption.
Does the witness talk over the interruption? Is the witness submissive
to the interruption? Is the witness frustrated by the interruption? Is
the witness embarrassed that he has gone into an area into which the
lawyer did not want him to go? All of these factors tell the
cross-examiner which of the many methods available to control the
runaway witness would be most effective in dealing with this
This is often an overlooked lesson. Direct examination allows the
cross-examiner to "go to school" on how best to control this witness.
Assess the witness continuously to determine which method or methods
available to control the runaway witness will work best if these are
needed in cross-examination. Assess whether this witness is someone who
is determined in wanting to say what he came to say regardless of what
is being asked. Or, to the contrary, is this a witness who does not
object to being confined into any area selected by the examiner? Is this
a witness who will allow himself to be regimented back into areas that
the lawyer wants to explore? The cross-examiner's understanding of the
tenacity and personality of the witness arms her for the
Spotting and Exploiting Gaps in the Direct Testimony
Follow the Chronology. Most direct examinations are
conducted chronologically. Most trial lawyers adopt this form of direct
examination because it is easier to convey the information, and a
chronological story assists a fact finder who is unfamiliar with the
By moving through chapters of direct examination in chronological
order, opposing counsel has also made it easier for the cross-examiner
to follow and analyze the direct examination. The cross-examiner is
better able to spot the gaps in the story. Is the witness skipping over
certain information? Is the direct examination lawyer encouraging the
witness to quickly move over some part of the story? Is there an event
that logically should be talked about but which is being skipped? These
are the kind of questions that the cross-examiner, who is actively
listening to the direct examination, should be asking herself.
There are at least six types of gaps. As the direct examination
progresses, the cross-examiner should be attuned to listening for
Gap 1: Conspicuously Missing Event. The most obvious
gap is one in which there is a complete gap in the chronological
presentation by the direct examination. As an example, a prosecutor was
conducting the direct examination of a state trooper involved in the
stopping, questioning, and testing of a prospective
driving-under-the-influence arrestee. Methodically, the prosecutor took
the state trooper through the reasons that the officer had activated his
blue lights and stopped the vehicle. Methodically, the prosecutor took
the officer through the initial contact with the defendant. Then, in one
question, the officer is focused beyond the tests:
Q. What did you do after the defendant exited his vehicle?
A. I had him perform a series of field sobriety tests.
Q. After the field sobriety tests, what did you do?
The prosecutor then developed the handcuffing and arrest procedure.
He covers the reading of certain rights. He takes the officer
chronologically through the balance of his contact with the
The gap concerning the field sobriety tests suggests an opportunity
for the cross-examiner to develop a productive cross-examination. The
gap was created in the direct examination for a reason by the opponent.
If the opponent thought there was good news in the field sobriety exam,
the cross-examiner likely would have heard that testimony.
Gap 2: Lack of Details Gap. Similar to, and as a
subset of, the "complete gap" is the "lack of details" gap.
In a medical malpractice case, one of the operating room nurses
testified in great detail, including to the tenth of a milligram, to the
administration of certain medicines to a hip replacement patient. She
testified to the exact size of the orthopedic reamer/drill, as precisely
as to the exact millimeter. However, when she was questioned on direct
examination, she testified that a "small amount" of synthetic bone was
placed in the hip. As to this part of the surgery the witness was asked
nothing and offered no details. No exact measures, in fact, no
discussion. The plaintiff contends that this "small amount" of synthetic
bone is one of the reasons that there was no in-grow of the hipbone into
the orthopedic device.
As soon as the cross-examiner notices this gap in the details, it
becomes a potentially productive area for cross-examination. The witness
omitted the details for a reason.
Gap 3: Gaps in Timing of Questions. The tuned ear of
the cross-examiner must be aware of the cadence or speed of questions
and answers in direct examination. When there is a substantial increase
in the cadence or speed of questions by the direct examining lawyer,
this is a type of gap in the testimony. The direct examining lawyer is
signaling to the witness to go faster in this particular area. This is
frequently a tip-off that this direct examiner has concerns about this
area of testimony.
On the other hand, when the direct examiner reduces the speed of the
questions, the cross-examiner must be attuned, not only to the speed,
but also to the tone of the reduction of the speed. This slowing of
questions on direct examination may be intentional by the lawyer
conducting the direct examination. The direct examination lawyer may be
emphasizing this material through the creation and use of
If the reduced speed of questioning causes the witness to testify in
greater detail, the cross-examiner has likely discovered the strength of
the witness and the primary reason she was called to testify. This also
signals to the cross-examiner that this is where the witness is most
However, if the tempo of questioning slows down and the tone of the
direct examination lawyer becomes less confident, that may well signal
to the cross-examiner that the direct examination attorney is unsure of
or concerned about the responses of the witness in that area of the
direct examination. The cross-examining lawyer's tendency is to
cross-examine on the speed rather than the solution. If the opponent
hesitates when dissecting X - why? In each case, the speed or cadence of
the questions has to be examined intently by the cross-examiner for
possible inclusion in the cross-examination of those chapters.
Gap 4: Stories Told Out of Order. The cross-examiner
should be conscious of where, at what point, the direct examination
begins chronologically. The direct examination, after introduction of
the witness to the fact finder, should start where it is easy for the
fact finder to follow the testimony. When the direct examination
attorney attempts to ignore facts, statements, or events that happened
earlier than where the direct examination begins, it is an effort by the
direct examination attorney to steer the witness away from those earlier
facts and events. The cross-examiner must mentally process the previous
testimony of the witness and the testimony of other witnesses on this
point and events for potential chapters on cross-examination.
Gap 5: An Illogical Stopping Point. The
cross-examiner also must listen for whether the witness stops
testifying, but the story keeps going. Does the testimony stop abruptly?
Does the testimony stop before the logical end of the story? These
occurrences signal to the cross-examiner that there may be potentially
successful cross-examination chapters that post-date the testimony on
Gap 6: Covering the Entire Time, But Not the Entire
Story. Perhaps the subtlest of gaps on direct examination
occurs when the witness or the direct examination lawyer intentionally
omits issues or events that occur simultaneously with those events to
which the witness is testifying. An example: A witness gives direct
testimony about a workplace confrontation in a hostile work environment
case. The witness is able to reconstruct through his testimony that he
heard the defendant yelling at the plaintiff (Bobby). The witness
testifies in some detail as to the defendant's words, tone, and volume
during this confrontation.
The cross-examiner noted that the witness was never asked nor did the
witness volunteer about what the plaintiff, Bobby, had said. There was
no testimony about the words that Bobby used, the responses Bobby made
to the defendant's comments, the tone that Bobby used, or the volume
that Bobby used. There was no testimony about Bobby's utterances at all.
The cross-examiner mentally bookmarked and made a brief note on this gap
on the issue of what Bobby had said for prospective use on
Whenever there is a gap in the testimony of the witness on direct
examination, that gap is normally one that may produce favorable
cross-examination material. Listen for the gaps in direct. Some gaps are
witness-created. Others are direct examiner-created. The gaps in the
direct testimony are often where the cross-examiner may produce
favorable cross-examination material.
1Larry Pozner & Roger Dodd,
Cross-Examination: Science and Technique (Lexis Law
Publishing), Ch. 10, "Page Preparation" (trial notebook page layout;
discussion of how to take notes during trial).
2Id. at Ch. 9, "The
Chapter Method of Cross-Examination" (structure, makeup, content of
chapters of cross-examination).
3Id. at Ch. 10, "Page
4Id. at Ch. 11, "Sequences
6Id. at Ch. 15,
"Controlling the Runaway Witness."
7Id. at Ch. 23, "Creation
and Use of Silence."