The Art of Cross-Examination

Cross-examination is tricky; so many ways to screw it up. It’s not taught in law school, not when I was there, anyway. You have to learn how to do it by trial and error. I’m talking about actual trials and errors. 

Janet Malcolm is a cross-examination fetishist. She’s written about it in her classic The Journalist and the Murderer (1990), and again in her great Iphigenia in Forest Hills (2011). In the latter book, she says memorably, “A successful cross-examination is like a turn of the roulette wheel.”

Recently, in her “A Second Chance” (The New York Review of Books, September 24, 2020), a fascinating account of her preparation for testifying on her own behalf in the second Masson v. Malcolm libel trial, she says of her lawyer Gary Bostwick’s cross-examination of Jeffrey Masson, “In his best moments, he played him like a matador playing a bull.”

Playing a witness like a matador playing a bull takes a lot of skill and preparation. It doesn’t just happen. Some lawyers never get the hang of it. During my early years of practice, I was one of them. I dreaded cross-examination. I didn’t understand it; I wasn’t ready for it; I couldn’t do it. Then, one day, I was reading Arlene Croce’s great The Fred Astaire & Ginger Rogers Book (1972), in which she describes the “detailed minutage” that the director Mark Sandrich made for every one of his Astaire-Rogers musicals. Croce provides a sample of one at the back of her book. Looking at that chart, I wondered why I couldn’t do the same for my cross-examinations.

And so, in preparation for trial, I charted my cross-examinations Mark Sandrich-style. I drew a set of columns on my yellow legal pad – a column for witness’s statements to the police, a column for what the witness testified to at the preliminary inquiry, and a column for what the witness said in direct examination at trial. And then I divided these columns into rows, one row for each subject of cross-examination. For example, if the witness told the police that the accused was wearing dark gloves, and then at preliminary inquiry testified she couldn’t remember if he was wearing gloves, and then at trial testified in direct examination that she didn’t see his hands, that meant I had three different versions of testimony from that particular witness on the subject of gloves. A good cross-examiner can turn such contradictions into gold. That’s really what I was charting – contradictions, inconsistencies – the more the better.

These charts improved my cross-examination immeasurably. Armed with them, I found myself looking forward to cross-examination. Some might find it quite improbable that a book on Fred Astaire-Ginger Rogers musicals could help me hone my cross-examination skills. But improbable or not, it’s the truth, so help me God. Thanks to the chart at the back of Croce’s great book, I became, if not a Gary Bostwick-like matador, at least a competent cross-examiner. 

And by the way, Croce’s book is great. Here are some samples:

Up, over the furniture and down again, à deux. They dance up, he swings her down. Dancing on the furniture is Astaire’s own motif in this film. Only in Astaire musicals do we dream like this.

Two big Cossacks have to carry him protesting onto the dance floor, and there he does his longest and most absorbing solo of the series so far, full of stork-legged steps on toe, wheeling pirouettes in which he seems to be winding one leg around the other, and those ratcheting tap clusters that fall like loose change from his pockets.

The withheld impetus makes the dance look dragged by destiny, all the quick little circling steps pulled as if on a single thread.

Astaire and Rogers yield nothing to Garbo’s throat or Pavlova’s Swan as icons of the sublime, yet their manner is brisk. Briskly they immolate themselves.

The snow of Swing Time is as magical as the rain of “Isn’t This a Lovely Day?” and the white hotels of Venice. If you put Top Hat in a glass ball like a paperweight and turned it upside down, it would be Swing Time. And at the end of Swing Time, the sun comes out through the falling snow.