Cross Examination is Not a Frontal Assault, its Guerrilla Warfare, Especially with Mueller.

Cross examination is not a frontal assault, its guerrilla warfare.

I’ve been lucky enough to teach cross examination to lawyers and law students throughout the United States and around the world, from Uganda, to the Republic of Georgia. Thailand to Russia and beyond. I’ve also been lucky enough to do this partly because of my experience trying a lot of cases before juries as well as being trained by the National Institute of Trial Advocacy and at the International Criminal Court. As a prosecutor, I’ve crossed people and put them in jail. As a criminal defense lawyer, I’ve controlled adverse witnesses and police officers and have had a lot of acquittals. Crossing examination can be different in every case but there are some basic steps that need to be addressed.

The purpose of cross examination is to establish a theme and then to carefully control the witness before you in order to control their testimony. In the end, it is about the product they present, through you, to the fact finder. In other words, you are trying to get points by making them look great or horrific. One of the considerations is how smart and experienced your witness is. In this case, its Robert Mueller and the cross examiners are members of Congress.

Mueller likely has far more experience as a witness and expert than any member of Congress and knows his job. He has testified many times, and has a resume that is impressive, regardless of which side of the fence you sit. All that being said to make the point that Mueller is dangerous and can easily make you look like an idiot.

As I watch members of Congress struggle with cross examination, it’s killing me to watch just how much they are failing, and yes, looking like idiots. What they desperately need is training. I know that they are good communicators but cross examination is a unique skill set. It takes thought, planning and a demeanor that reflects each member individually. More importantly, it takes reverse engineering so that you start with what you want and then work backwards.

Simply put, these Legislatures are generally not doing this. They see frontal assaults as the answer when cross examination is all about guerrilla warfare. Its not necessarily attack attack attack. Its about so much more than that, even if you are attacking them. Let’s hope they can improve. Honestly, I’m writing this as a professional tactician and international trial advocacy skills teacher, not as a political advocate for one side or the other. If you don’t know where you are going, how in the hell are you ever going to get there? If you don’t know, then this is all pointless.