The Tempo of Cross-Examination (or, What Beethoven, Urban Meyer, and James Woods taught me about cross-exam)

In music, it’s not just the notes that create the tune.  It’s also the length of the notes and the empty spaces between the notes that define the music.  You don’t immediately recognize Beethoven’s Fifth Symphony because of the first four notes (“G-G-G-E”).  You immediately recognize it because of the tempo (“short-short-short-loooooooooooonnnnng”).

Tempo.  It doesn’t just affect the mood of the music, it also affects the difficulty level of the musical performance.  The faster the tempo, the livelier the tune, and the greater the performance difficulty.  The slower the tempo, the more somber the tune, and (generally), the easier it is to play.

Tempo’s effects aren’t limited to music.  I was watching a University of Florida football game and the commentator commented (after all, that was his job) that the Gators had increased the tempo of the game and were throwing the other team off of their game plan.  Whenever you force someone to do something faster (ex. juggling, talking, typing) they’re going to make more errors.  The losing team was missing tackles, dropping catches, and throwing interceptions, because they couldn’t control the tempo of their game.

How about you?  Who’s controlling the tempo of your trial?  Most importantly, who’s controlling the tempo of your cross-examination?  Often, the tempo of your cross-examination will determine whether or not it succeeds.

To successfully cross-examine, you need to be “quick.”  Increasing the pace of your questioning allows you to control what story gets told during cross-examination.  If the witness is lying, he’ll need time to think of the lie.  The faster your questions pummel him, the less likely his chances of maintaining the lies.  Control the pace of your cross-examination and you won’t give the witness time to fabricate his responses.  Control the tempo, and you control the cross-examination.

An example of tempo’s power to control cross-examination was demonstrated in the pilot episode for the TV show Shark. In the scene, the celebrity defense attorney-turned-prosecutor Sebastian Stark (played by James Woods) is telling his protégés that they must make the defendant (a woman accused of killing the man she just slept with after discovering their lovemaking had been taped) lose her self-control on the witness stand:

If you enjoy watching James Woods act, you’ll enjoy what follows.  In the blink of an eye, his entire face, posture, and demeanor change.  In one instant, he’s jovial and joking.  In the next, he’s got on his cross-examination “game face” and launches into his attack:

The questions (“the notes”) aren’t what matters most.  It’s TV, so he’s not bound by the rules of evidence, and you wouldn’t (and probably shouldn’t) ask the majority of those questions.  What was fun to watch was the tempo of the questions.  It was relentless.  There was no room to let up.  If there were any silences during the exchange, it’s because they were planned by the writers.

Who’s controlling the pace of your cross-examinations?

As the examiner, you don’t have exclusive control over the tempo.  Your witness also has power to speed up or slow down the pace of the examination.  The witness can slow down the tempo by pausing before answering, adding innocuous comments to his answer, or asking you to repeat or restate your questions.

But as the examiner, you want to control the tempo.  You can make his pausing seem like he’s crafting his answer and isn’t being forthright.  You can craft your questions so that any answer besides “Yes” or “No” appears to be an attempt to avoid answering.  Finally, and perhaps most obvious, you can control the tempo by varying how quickly you ask your questions.

But how do you become “quick?”

Being quick starts before you even walk into the courtroom.  If you need to refer to notes or poke through boxes of stuff to impeach the witness, it’s impossible for you to be quick.  To be quick, you need to have a sharp memory, instant access to all of your impeachment material, and the ability to ask questions in a rapid-fire manner.  To do that, you’ll need to cram all of the information into your head and have it available for instant recall.

Don’t worry, you already know how to do this.

You thought that law school didn’t really prepare you to be a trial lawyer, but you’re wrong.  During exams, you had to cram an entire semester’s worth of information into your head, organize it, and then spit it out coherently and persuasively on the exam page.  Well, that’s perfect preparation for trial work.  When you prepare for cross-examination, you cram an incredible amount of information into your head.  Facts, figures, previous statements, lines and page numbers, motives to lie, biases, friendships, relationships, spatial comparisons, probabilities, timing, distances…  you cram it all inside your cranium.  Tomorrow, after the jury renders its verdict, you won’t need to keep this stuff in your head.  But for today, while you cross-examine the witness, you need to have
all of it available with instant recall.  When you have instant recall of the information, you can deliver your questions at a rapid fire pace and control the tempo of the cross-examination.

Remember, tempo is more than just a musical element.  Tempo affects your entire trial, but its effects will be most apparent during cross-examination.  Before you cross-examine your next witness, spend some time thinking about the tempo of your questioning.  A great cross-examination is more than just the “notes.”  Prepare your timing, practice, and your cross-examination composition will be a symphony masterpiece.