The Art of Advocacy

Which part of a trial is the most important? Lawyers may never agree on an answer to this question, but no lawyer would dispute the significant role cross-examination plays in proving one’s case before a judge or jury. My forthcoming book: Anatomy of a Trial: A Handbook for Young Lawyers, analyses cross-examination as one of several vital phases of a successful trial. Still, a number of excellent books present a full-court press on cross-examination and they should be on any young trial lawyer’s reading list.

One of the most valuable is Cross-Examination Handbook: Persuasion, Strategies, and Techniques, by Ronald H. Clark, George R. Deckle, Sr. and William S Bailey (Wolters Kluwer 2011). This book has it all, and I rank it as one of the best books on cross-examination in recent times. The subject matter is thoroughly covered, and the authors provide wonderful examples -- and checklists. Examples come from some of the most historic trials of the past one hundred years, such as Clarence Darrow’s famous cross of William Jennings Bryan in the Scopes Trial of the 1920s, and the cross of Senator Ted Stevens in his own trial three years ago. Chapters include constructing the cross, impeachment, and the ethical and legal boundaries of cross-examination.

Terence F. MacCarthy’s MacCarthy on Cross Examination (ABA 2007) is also a must-read for anyone seeking to improve his or her cross-examination skills. Mr. MacCarthy is the Public Defender Emeritus of U.S. District Court for the Northern District of Illinois. He is a masterful trial lawyer, teacher and writer. According to MacCarthy, a cardinal rule on cross is to control the witness with short statements in question form, all calling for a “yes” answer. Terry MacCarthy has taught scores of lawyers to succeed on cross using his methods.

Another helpful compilation is Steven F. Molo and James R. Figliulo’s Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers (Law Bulletin Publishing Company 2008). This book presents views of fifty esteemed lawyers on the art of cross-examination.

Finally, those lawyers who are truly committed to mastering cross should read The Art of Cross Examination, by Francis Wellman. Originally published in 1905, it is still in print. Wellman presents selections from some of the great cross-examinations of yesteryear, “whose extended experience makes them safe guides to follow.” With experts including Joseph Choate, Charles Russell, Abraham Lincoln and others, the book is a joy to read and a timeless and insightful guide to the fine art of cross-examination.