The following is excerpted from the 2017 book “Cross-Examination for Depositions” by Roger J. Dodd and Matthew A. Dodd. Cases are often won or lost at the discovery stage, and knowing how to cross-examine deponents is an essential skill for all litigators. Cross-examination for depositions gives you the tools you need to maximize your effectiveness at depositions.The authors show you how to focus on the “theory of the case” and prepare lines of questioning that support that theory. Following the authors’ preparation guidelines will afford you a major advantage before a deposition even begins.
Difficult witnesses can challenge even the most experienced deposing counsel, and the authors provide numerous suggestions on how to deal with scenarios involving difficult witnesses.
The authors emphasize the technique of using cross-examination constructively, to elicit facts from opposing witnesses to further your own theory of the case, as opposed to merely attacking your opponent’s theory of the case. This technique, first introduced by Larry Pozner and co-author Roger Dodd in the classic work cross-examination: science and techniques, is devastatingly effective.
Numerous examples of deposition testimony are woven throughout the chapters. These examples clearly illustrate the points made in the book.
For generations, the cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case. Under the newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically, according to Roger Dodd, a national expert on cross-examination techniques.Constructive cross-examination is a quantum shift from the historical outlook on the central purpose of cross-examination. It is not a technique, rather it is a new perspective on the ability to use cross-examination at trial to teach the cross-examiner’s theory of the case.
Under this newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically: use opposing witnesses to build the cross-examiner’s theory of the case. While the cross-examiner can still challenge opposing witnesses and their story, thus damaging the opponent’s theory of the case, this goal becomes secondary under constructive cross-examination. This exponential expansion of the function and purpose of cross-examination rewards the cross-examiner with broader, more productive cross-examinations that are at the same time easier and less stressful.