Cross examination: Don’t ask … less is more?

Law360 Canada (October 17, 2025, 3:31 PM EDT) --

Marcel Strigberger

“Were you lying then or are you lying now or are you a chronic and habitual liar?”— Sir Wilfred Robarts (Charles Laughton) from the film Witness for the Prosecution

Is it an art? Is it a science? It’s cross-examination! I can say that many lawyers make a mess of it. Certainly, when I was in law school it was never dealt with it. We were taught the substantive law, such as that snail-in-the-ginger-beer case, Donoghue v. Stephenson, which revolutionized the law of negligence. But nobody told us what to do when you got the ginger-beer purveyor on the stand for cross-examination. You would have to do better than, “Sir, I suggest to you that you were negligent.” A real knockout punch, no doubt. I don’t see the jury gasping and saying to themselves, “We’ve heard enough. Hang Stephenson.”

The closest we got to observing a great cross-examination was in the movies. No doubt we all recall the iconic film Witness for the Prosecution, where Charles Laughton plays the role of Sir Wilfred Robarts, eminent barrister, who defends Leonard Vole (Tyrone Power). Sir Wilfred conducts a brilliant cross-examination of Christine Vole (Marlene Dietrich), the “wife,” surprise witness, who testifies for the prosecution, flip-flopping on Leonard’s alibi. Sir Wilfred in a loud voice bellows, “Were you lying then or are you lying now or are you a chronic and habitual liar?”

The jury finds the defendant not guilty (of course). I should add that Sir Wilfred had another trick up his sleeve, namely the monocle test, where to establish honesty he would extend his monocle, reflecting a light beam on a character’s face and observing their reaction. (Maybe you can consider this tactic in your next trial, but I suggest you ask for the judge’s green light.)

I am by far not an expert on cross-examination; however, I have a fair idea of what does not work. Firstly, there are those questions preceded by useless verbiage lawyers often use, such as, “Isn’t it a fact that ...?” “Isn’t it a fact that you like to binge on wine?”

An alternative version of this piercing question is, “Do you agree that you like to binge on wine?” For some reason, the lawyer believes that “You like to binge on wine?” will elicit a “No” answer and the emphatic setup words “isn’t it a fact that” will result in a “yes.” Some lawyers don’t let go, firing another blank, such as, “Do you expect the court to believe that …?” I have yet to see a case, where the witness responds, “Actually, I don’t expect the court to believe that.” Then there are lawyers who believe adding their own verbal reactions will buttress their cross. You’ll hear something like:


An alternative, more assertive reaction is:


I doubt this method will result in colleagues beating a path to the lawyer’s door, beseeching him to chair the next symposium on effective cross-examinations. And we are all familiar with the caveat, “Never ask a question to which you do not know the answer.”

Do any lawyers overlook this admonition? I witnessed a dangerous-driving trial once where the police officer, who had followed the defendant who was driving erratically for a distance, confined most of his testimony to the last few seconds before the accident. The defence lawyer in cross-examination asked the officer if his client’s driving was OK earlier along the way. The officer looked at his notes and, emitting a grin like the Cheshire Cat, said, “Actually, now that you mention it …”

Then we have the lawyers who insist on scoring a grand-slam impeachment. The problem is they often blow the process by not properly setting up or completing the impeachment. I had a case once in an aborted house-sale deal, where my client’s testimony in an important area differed from what he had said at his examination for discovery (a.k.a., deposition). The opposing counsel’s ears perked up, but he ran out of fuel somewhere:


One of my first trials involved a two-seater hovercraft that suffered the fate of the Titanic on its maiden voyage on a lake in Ontario. We argued that the hovercraft simply sank. The defendant retained an impressive expert witness who was involved in designing the hovercraft. This expert was both a marine architect and an aeronautical engineer. He came to court wearing a navy-blue blazer bearing a crest of a colourful hot-air balloon hovering over a mini-submarine. His opinion was that the hovercraft must have struck a protruding rock as there was a small gash in the hull, we said was caused as the craft sank.

We won the case. Fortunately, what saved the day was my very professional near-panic state, where I chose to totally limit my cross-examination of this one man who was a cross between Neil Armstrong and Sir Francis Drake. At that time, I had not yet seen Witness for the Prosecution. But even if I had, I doubt I would have asked the judge for leave to perform that monocle test. Thinking back, I believe even Sir Wilfred Robarts would have left this guy alone.

Cross-examination:  … Less Is More?

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. His new(!) book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X @MarcelsHumour.

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