What do wrestling and cross-examination have in common? I thought about that when I had the opportunity to hear Cael Sanderson speak to a group of business men, lawyers and doctors in Princeton, New Jersey. Sanderson is the head wrestling coach at Penn State University, which has won the NCAA Division 1 National Wrestling Championship for the last four years. Prior to that, Sanderson won a Gold Medal in the Olympics and was an undefeated four time NCAA wrestling champion as a collegiate wrestler.

Although it has been more than 30 years since my last wrestling match, I have been wrestling witnesses for the past 24 years, as a trial lawyer. Sanderson said that he tells his wrestlers that you must first decide what you want to do. He discussed the importance of having a plan.

This is sound advice when cross-examining a witness. Like a wrestling match, you must first decide what you want to do with the witness.

Do you want to impeach the witness by proving that he is incredible or has a faulty memory or do you want to bring out information that is helpful to your case or harmful to your adversary's case? You may even want to achieve all of these objectives and others?

Once, you know what you want to do, carefully plan your cross-examination and have at your fingertips the necessary impeachment documents, such as deposition transcripts and other statements made by the witness.

You must remember that the witness has been called by opposing counsel to help his case and damage yours. The witness is your opponent, not your friend.  Do not give him an opportunity to help your adversary.

It is critical that you remember to only ask leading questions that you know the answer to. If the witness deviates from the anticipated script, you should have at your fingertips, for each question, prior testimony or statements from the witness, which will either discredit the witness or force the witness to provide the answers you expect.

I regularly see witnesses attempt to disagree with leading questions at trial. After I catch them a couple of times in front of the judge with a contrary statement in a deposition transcript to the identical question, most witnesses become trained to agree, while those that do not, lose credibility.

A good cross-examination starts with a plan.  You must first decide what you want to do before developing your plan.

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