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6 Alaska L.J. 1 (1968)

handle is hein.barjournals/alaskalj0006 and id is 1 raw text is: A LAW Vol. 6 JNNAL JANUARY, 1968 No. I THOUGHTS ON CROSS EXAMINATION By WENDELL P. KAY (Mr. Kay is a member of the Alaska Bar and President of the Anchorage Bar Association-Ed.) Some lawyers, and not all of them neophytes either, seem to feel that 'cross-examination means to question the witness crossly. All too often we tend to puff up at the words, your witness, from opposing counsel, and with notes clutched in an iron grip, approach the witness stand with stern-jawed belligerence. hear it) is prefaced by, Do you mean to sit there and tell this jury,. ,, Of course that is exactly what any wellprepared witness intends to do-,it is the reason he is on the stand---and such a line of questioning will only provide him with a fine opportunity to repeat what he has already said on direct examination, often with suitable embellishments and refinements. Meanwhile your own frustration often begins to show. This brings us to Rule One in the art of cros s-examination: Approach your victim in a mild, congenial, and pleasant fashion. Be charming, impress the witness (and the jury) with the idea that you are a really nice fellow just trying to get at the facts. The rough stuff if any, comes later, after you have done the proper groundwork. But wait just a moment: We have already begged one of the most important questions, Should we examine this witness at all? Most of us tend to assume that just because the other side has called Elmer Roe as a witness, obviously Elmer Roe has to be cross-examined. No so. Ask yourself three questions as Elmer makes his last response on direct: (1) Has this witness really said anything substantially damaging to our theory of the case? Has he hurt us? (2) Does this witness know something (which can be extracted The first question (and I cringe to from him) favorable to our theory of the case? an he help us? (3) Am I prepared to cross examine this witness? Do I have a point to make? If your answers 'to each of these questions is in the negative, dismiss the witness with a wave of the hand. But make a note to point out in your final argument that Elmer Roe had absolutely nothing to say, and the mere fact that he was called at all demonstrates the weakness of your opponent's case. Even if you decide, in weighing the first two questions, that Elmer did hurt or can help, hesitate before you take the plunge unless you can also say, I have a theory to follow and I am prepared to examine this witness. Few things in a trial are more dangerous than than an unprepared exploratory cross-examination in which the lawyer fumbles along hoping to stumble across something helpful. Rarely successful, the usual result is to provide the witness with a golden opportunity to repeat, reiterate, and re-emphasize his testimony on direct examination- exactly what you do not want! Let me say it again: do not lead the witness ,point by point ,through his testimony on direct: If that is all you can think of to do with the witness, leave him alone. You will do more harm to your case than good. So, Rule Two is: Don't cross- (Continued on Page 2) -I- IN THIS ISSUE Thoughts on Cross-Examina- tion (By Atty. Wendell P. Kay) ...................... 1 Board of Governors Approves Funds For Convention, Raise in Dues .......... 5 Directory of Alaska Bar As- sociation ................. 6 Directory of Alaska Court System .................... 9 Alaska Superior Courts Marthia v. Jiminez (3rd Dist., Anchorage) (Interpretation of Uninsured Motorists Clause in Insurance Policy, with Arbitration Provision) 10 Lemas v. City of Seward (3rd Dist., Anchorage) (Interpre- tation of City Charter Pro- vision Requiring Notice Be- fore Suit) . .......... 14 Goad v. Queen (3rd Dist., An- chorage) (Conflict of Laws; Enforcement of Wisconsin 'Long-Arm' Statute by Alaska Court) ............ 20 Alaska Supreme Court No. 442-Pepsi Cola Bottling Co. v. New Hampshire In- surance Co. (Earthquake Coverage by Reference in Competitor PPolicy Where Omitted by Error in Policy of Reference .............. 23 No. 444-Kamstra v. Bolles (Effect of Stipulation on Extent of Damage in Auto Accident Negligence Suit) 26 No. 445-Alaska Canada Corp. No. 445 - Alaska Canadian Corp. v. Ancow Corp. (Sum- mary Judgment Based on Written Agreement Re- specting Sale of Mining Claim s) ................... 28

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