What Is Cross-Examination And Why Should I Care Anyway? A Primer For Injury Victims

In my article How to Get More Money for Your Injury Claim: Giving Evidence at Discovery, I briefly touched on the importance of cross-examination. This article explains more about the role of cross-examination in getting you the money you may be entitled to for your injury.

A famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man. This statement of the critical importance of cross-examination to court process is accepted and even venerated by virtually all experienced lawyers and judges. So what is cross-examination, and why should you care?

If you or someone you care about has a significant personal injury claim, then cross-examination and what you can do about it could be very important. Read on.

To most lawyers, cross-examination is a method of asking questions of the other side's witnesses, and it means they can ask "leading" questions. A leading question is one that suggests the answer ("You stopped beating your wife in 2005?"). But leading questions are only part of the story of cross-examination, and lawyers who think it is the full story often engage in table thumping or nitpicking sessions that give the impression of making a point (which nobody can remember afterwards) or peter out without leaving any impression at all.

Yes, cross-examination involves leading questions. That is Rule #1 of cross-examination: (1) leading questions only. But most lawyers do not understand the other two cardinal rules of cross-examination: (2) establish one fact per question, and (3) move toward an achievable goal. This goal should be one which harms your adversary's case.

That's it - the only three cardinal rules of cross-examination. But leave out any one of them and the lawyer is trusting to luck not skill.

One other thing. Preparation is required to apply the above three rules to maximum effect. Lots of preparation.

Should you care? Any accident and injury client with a case important enough to have a lawyer should know that cross-examination can make or break a winnable case. And there is something important that you yourself can do to stack the odds in favor of winning, other than choosing a lawyer who will effectively cross-examine the other side.

Most personal injury claims don't go to trial. Over 95% of accident and injury claims settle. But the majority of significant injury claims (significant enough to have a lawyer) will go to "oral discovery". This involves going to a law firm boardroom and being examined under oath or solemn declaration to tell the truth.

So what can the personal injury client do to influence the odds of winning in their favor? Prepare! The two or three hours spent in oral discovery will strongly influence the amount of your settlement and may be the most profitable few hours in your life.

A good, experienced personal injury lawyer will help you prepare for this important initial event of oral discovery. How well your claim fares will depend on how good the defence lawyer is at cross-examination, and how well prepared you are to answer it. The good news for injury clients is that most defence lawyers are not good at cross-examination, and that you can enormously improve your bottom line results if you prepare for your testimony.

In the next installment in this series, I will discuss winning cross-examination at the oral discovery and winning the cross-examination at trial.


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Chesley F. Crosbie, Q.C. represents injured people in the fields of accident, malpractice, and class action law. For legal resources and commentary on current issues please visit his website at http://www.chescrosbie.com .