Publications: How To Cross-Examine And Look Good Doing It: Using Terry MacCarthy’s Cross System

Cross-examination is often thought to be one of the most difficult tasks for the trial lawyer. The federal defender in the U.S. District Court for the Northern District of Illinois, Terrence F. MacCarthy has developed a system that will calm your fears and steady your nerves. It is called the “look good” cross, and it is being taught by the National Criminal Defense College and the U.S. Department of Justice as a preferred method of cross-examination. It is high time civil lawyers adopted this system as well.

MacCarthy’s look good system is the first system of which I am aware that goes beyond commandments about what to do and what not to do. The system provides a framework around which to design a cross-examination. It is a system based on a theory of how to most effectively conduct cross-examination. Any confident lawyer can use it with tremendous effect.

To further understand it, and to use it most effectively, we must remember the context in which we are using it: cross-examining a witness. Cross-examination is used to persuade the jury of particular points important to the client in any particular trial. Almost all trials are disputes over particular sets of facts. And we all know from our experiences as trial lawyers that the best way to convince a jury to adopt our particular set of facts over another particular set of facts is to frame the dispute around a story. MacCarthy’s look good cross embraces the concept of storytelling and incorporates it within the system of cross-examination.

What is the goal of cross-examination? It usually depends on the witness to be cross-examined. A few goals, however, are present in almost every case. The cross-examiner wants to develop points or facts favorable to his or her case. The cross-examiner also wants to undercut facts unfavorable to him or her. Credibility is always an issue. The witness’s credibility is usually at stake, but so too is the questioner’s credibility. The lawyer’s credibility is always at stake because the lawyer is the storyteller and, in MacCarthy’s look good system, he or she is telling a story through cross-examination.

The basics can be summed up in three simple points: (1) use plain English; (2) direct the witness to the subject matter, and draw information from the witness using short declaratory statements; and (3) tell the story of your case, or a portion of it, through the cross-examination.

Use Plain English
Keep in mind that we are trying to communicate with and persuade jurors. That means that we have to return to the real world. You know, the one where people speak plain English. MacCarthy suggests we talk to the witness like we would talk to someone at a bar. (Not the place where you look up at the judge but rather the place where you stop by to drink and talk with everyday people, otherwise known as potential jurors.) I was confused until MacCarthy explained to me that this did not mean the type of bar that I frequent, the kind with peanuts and sawdust on the floor, but rather a nice bar, with carpeting. Plain English means putting away “calling your attention to the date on which the occurrence in question took place” and references to “exiting vehicles.” Real people get out of cars, they do not exit vehicles. So instead of calling the witness’s attention to the date in question in which the occurrence took place, instead simply state “I am going to ask you some questions about what you did on May 12, 2003, before you were hit by the car driven by the defendant, Mr. Jones.” It really is that simple.

Use Short, Declarative Statements
It is important to use transitions like the example above, to tell the witness where you are going. This helps the witness establish the proper frame of mind in which to answer the question. It also advances your control over him or her.

The same is also true of the short, declarative statements you use to present information. While much of cross-examination requires control of the witness, it is not necessary to use the classic prefixes and suffixes of leading question format-the prefixes “Is it a fact that . . . ?” “Isn’t it true that . . . ?” or the suffixes “ . . . , correct?” or “ . . . , isn’t that true?” or “... , am I correct?”—that terminally lengthen most cross-examinations.

The cross-examiner certainly has the right and power to use such leading question techniques, but the more skilled cross-examiner can obtain the information without using them. For example, “You are Alison Timmons.” You do not need to say “Isn’t it a fact that you are Alison Timmons?” or “You’re Alison Timmons, correct?” Just state the fact and have the witness affirm it or deny it. Of course, the only answer that you want to hear is “Yes.” That is because you are using the cross-examination to tell your story and the effect of the cross-examination is to enhance your credibility.

The cross goes something like this:

“You’re Allison Timmons.”
“Yes.”
“You live at 123 Greenway.”
“Yes.”
“In Crystal Falls.”
“Yes.”
“You work at Acme Manufacturing.”
“Yes.”
“As an administrative assistant.”
“Yes.”
“To the president.”
“Yes.”
“You have been there for 15 years.”
“Yes.”
“You have three children.”
“Yes.”
“Brian, age 15.”
“Yes.”
“Louise, age 13.”
“Yes.”
“Kelly, age 10.”
“Yes.”

This is the fastest, most efficient way to provide the jury with information. It also allows the cross-examiner to tell a story and to state the facts. The only role the witness plays is to affirm the trial lawyer’s statements. Since the witness affirms everything you have said as being true, the jury is impressed with your credibility as well as your knowledge.

Short, declarative statements will provide you with the control you need. This is true for several reasons. Short statements, by their very nature, provide control over the witness because they break the testimony down into very small parts. The smaller the part, the less ability the witness has to avoid the question. And by breaking the story line down into small parts, you can control the witness without appearing to be controlling.

The use of short questions takes advantage of our social customs. Short statements lead to short answers. A witness who tries to give long-winded answers to very short questions provides a strong signal to the jury that he or she is not being cooperative. Sooner or later, social pressure and embarrassment will catch up to even the most pompous witness. The witness has a choice: cooperate or look silly. Almost always, the witness eventually chooses to cooperate with the questioner and get it over with. This is what you want.

Tell Your Story
Use these short declarative statements to set your transitions and develop your points. Now remember that your primary purpose is to tell a story. A memorable story. A persuasive story. So loop the favorable information from previous questions into the next question to build bit by bit as you go along.

An example:

“I’m going to ask you some questions about what you saw when you left Murphy’s bar about 3:00 in the afternoon on May 19, 2001. You understand?”
“Yes.”
“There was a light rain.”
“Yes.”
“You saw a car.”
“Yes.”
“Pontiac.”
“Yes.”
“Convertible.”
“Yes.”
“Green.”
“Yes.”
“And in the green Pontiac convertible you saw a man driving.”
“Yes.”
“There was a woman in the car.”
“Yes.”
“The woman next to the man in the green Pontiac convertible had red hair.”
“Yes.”
“They drove west on Adams Street.”
“Yes.”

Later in the story, this witness will see the green Pontiac convertible heading eastbound on a nearby street, but the woman will no longer be in the car. By cross-examination through storytelling, the questioner has permanently set in the jury’s collective mind the idea of the presence of the red-haired woman next to the man in the green Pontiac convertible. They will not forget that when they hear that she is no longer in the car a short time later when the car passes the witness again going the other way. The look good cross system is successful because it incorporates the basic principle of trial advocacy—storytelling—into the cross-examination itself.

I do not recommend this system because Terry MacCarthy has been a personal mentor to me for almost 20 years of law practice. I recommend it because it works. Terry will be speaking for TIPS at the ABA Annual Meeting in Chicago in August 2005 on the subject of impeachment and, again, at the Annual Meeting in Honolulu in August 2006 on his favorite topic, the look good cross-examination system. These are two must-see CLE presentations. Be sure to pencil these in on your calendars now.

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