18/08/2026
COMMON PROBLEMS ENCOUNTERED BY EXAMINER DURING CROSS-EXAMINATION.
by Atty. Florante A, Zagada.
The ability to effectively cross-examine a witness that brings good results is a skill developed for many years. As I reflect on my past cross-examination performance, it was so much to be desired. But if we have the right techniques, we can correct those mistakes and perform better in the next cross-examination.
In this reflection, I will share with you the recurring problems that inexperienced lawyers encounter during the cross-examinations. What are they?
1. WEAK BEGINNING.
In cross-examination, the first 1 or 2 minutes are very important because it is during this time that you create an impression to the judge. You must impress the judge with your first few questions to make him/her interested to listen to you. Because if she is reading or busy with something and not listening to you, it means he/she is not listening to your evidence.
You have this first few minutes to let the judge know that your cross-examination will be fresh and interesting, and will bring out additional information to make them see this witness, and the case, differently.
Start immediately with something important, something that has an impact, that makes the judge think. Let the judge think: This lawyer is worth listening to; I'll stayed tuned. Slow starts, particularly on cross-examination, definitely do not work with today's judges or jurors. PRIMARY is important in cross-examination. What the judge absorbs first will linger to his/her mind until the decision making. First item is remembered best. The attention of the judge or jurors is the sharpest at the very start of a task or presentation.
2. WEAK SELECTION OF POINTS.
One you conduct a cross, make a decision which part of the testimony or judicial affidavit of sworn statements and exhibits, you want to cover first. Of course, it must be the most important ones. In cross-examination, it is in large part the art of identifying and focusing on a few. key points that will make a difference in the judge's perception of the witness and
the case.
Do not try to cover everything, and spending time on marginal or peripheral matters because they will only dilute the key points. A good way to test yourself is to ask: Is this point important enough that I need to emphasize to prove my case? If not, it's usually not important enough to cover during cross-examination.
In my cross-examination, I only cover a maximum of three important points. I I do not ask on minor inconsistencies the difference of time in minutes or some minor errors. I remember a cross-examiner who makes a fuss on wrong spelling of the word in the affidavit. Disregard it and concentrate on major points.
3. LOSING CONTROL.
Sometimes we feel frustrated because in the actual cross-examination, it does not go the way as we had it planned. A common reaction, when things don't go as planned, is to begin arguing with the witness and forgetting your game plan.
When this happens, the cross-examination degenerates, and judge usually sides with the witness. Losing control is usually caused by having unrealistic expectations of what you can accomplish during the cross-examination of a particular witness.
Do not argue with the witness. Keep your temper under control. Do not shout when you ask questions. Keep at the level where you can be heard by the judge and the witness and opposing counsel. But you may vary your voice to emphasize a point.
4. INEFFECTIVE IMPEACHMENT TECHNIQUE.
Effective impeachment requires an effective technique. Many lawyers impeach witnesses, but the impeachment has no impact on the judge/jurors because there is no clean technique and accompanying attitude that grab the jurors' attention and drive home the point.
I have legal reflections on various impeachment techniques like material inconsistent statements and contradictory evidence, etc. to learn from. We have to master those techniques to destroy the credibility of the adverse and hostile witnesses on cross.
5. NO ATTITUDE PROJECTION.
Cross-examination consists in large part of creating impressions. Whenever you cross-examine, you need to decide what kind of attitude you want the judge to adopt about this witness. Is the witness confused, mistaken, or forgetful?
Unconsciously distorting because of bias, interest, or motive? Intentionally dis-
torting or even fabricating facts? Unless you project the same attitude you want the judges to have, it is unlikely they will adopt it.
6. WEAK ENDING.
Cross-examinations frequently end when the cross-examiner runs out of questions to ask. This is a mistake, because judges remember best what they hear first and last. Always ask: What's the most (or second most) important point I can make about this witness, that I am reasonably sure I can successfully make? Cross- examinations should always end on a high note. We all this RECENCY.
Primacy and recency make up the serial position effect, which is our brain's tendency to remember the first and last items in a list or series better than the items in the middle. The first item of our cross-examination is remembered BEST. The last often of our cross-examination is remembered WELL.
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