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Pronove on cross-examination

(Article published in the Feb 13, 2008 issue of Manila Standard Today)  

I recently dislodged “The Art of Cross-examination” by Francis L. Wellman from the eye-level shelf of my law bookcase.  Though it was at one time hailed by The New York Times Book Review as an “Undisputed Classic”, I replaced it with, “The Art and Technique of CROSS EXAMINATION (with Rules on Electronic Evidence)” by retired Justice Ricardo L. Pronove, Jr., recently published by Raintree Publishing, Inc. of Mandaluyong City.

 The “P” in Pronove, from what I know of him, stands for practical, not as in the prejorative “pragmatic” but instead in the principled “praxis.”  So also his latest book: no room for lofty theology; instead brimming with what specific things to do and to avoid.  It is easy an read, but for a senior practitioner like me (“senior” only in terms of age and not of rank), the axioms and advice so resound with reality that remembering keeps interrupting the reading.

 I first met Justice Pronove in the early 70s after, though fresh from the bar examinations, I was eventually able to convince my boss to give me some trial practice; Undersecretary of Justice Felix Q. Antonio thus detailed me to the Solicitor General’s office where then Judge Pronove was assistant solicitor general.  A few years later, he was the President and I was the corporate secretary of the Board of Directors of a homeowners’ association in Pasig, at that time just a town of Rizal.  We then lost touch after our car pooling daughters graduated from the College of Arts and Sciences of the Ateneo University.


     The greatest beneficiary of Justice Pronove’s opus is the trial lawyer, though anyone who expects to be in a courtroom (and that includes almost everyone) either as witness, or as counsel, or as judge, would learn from it.  Going through the book from cover to cover (only 107 pages of text) just once is enough to get taste of the work as a whole.  But others would do well to consult it repeatedly for useful advice, some of which are at variance with common wisdom.

 For instance, contrary to common belief, Justice Pronove maintains that “cross-examination is vital not only in trial work but also in corporate practice.  A desk lawyer who knows how to discover the truth by using cross-examination techniques turns out more reliable and competent work than one who simply accepts whatever is told by his client.  Because he is more critical in his analysis of facts, he can foresee the strength and weakness of his client’s case.”

 Justice Pronove also warns against the tendency of lawyers to restrict their familiarity with the principal points of a case.  For Justice Pronove, knowing the details surrounding an incident is a ready and effective weapon for cross-examination.  “Details, particularly the small ones,” according to Justice Pronove, “are important and should not be ignored because they add credibility to a version, making it more believable and more in consonance with the ordinary course of things.”

 Many believe that cross-examination starts only after the direct examination of witness is terminated.  On the contrary, Justice Pronove holds that “in a sense, cross-examination starts during direct examination.  The cross-examiner comes to know the facts to be examined when the witness begins narrating his story.  Hence, direct examination is a very important but difficult stage for the cross-examiner.”

 Some lawyers address the difficulties of having to pay attention to the details of the direct testimony and at the same time watch out against objectionable questions by take down notes of what a witness is saying.  Cautions Justice Pronove: “this practice should be done sparingly.  Very brief notes are acceptable but recording word for word all or most of the testimony is not…The lawyer whose attention is not totally wasted in taking down notes but can concentrate on what the witness is saying and, equally important, can observe the demeanor of the witness while testifying, is an ideal cross-examiner.”

 After these seemingly contrarian, but certainly well-founded advice, Justice Pronove dissects the task of conducting a good cross-examination with a systematic classification of witnesses and suggests the specific ways of approaching each kind.  Thus, there is no sense is making an intelligent witness repeat his story word for word; “with a sympathetic witness, leading questions asked with tact and delicacy will prove quite effective in gathering facts favorable to the cross-examiner”; as regards hostile witnesses, Justice Pronove thinks that “the lawyer who is bent on cross-examining the hostile witness who happens to be intelligent and well-prepared would do well to emphasize the strong bias or partiality of the witness.”

 Justice Pronove also has good suggestions on how to handle partial, biased, prejudiced witnesses, impartial witnesses, and, probably the hardest to cross-examine, the expert witness and the child witness. 

 Both veteran and young trial lawyer would benefit from Justice Pronove’s tips on asking question.  Thus, “short, simple and direct to the point are the qualities of a good question”; “Don’t ask a question the answer to which you do not know”; “Don’t ask ‘why’ questions particularly on crucial matters”; “Refrain from asking the ultimate question”; “If possible ask leading questions all or most of the time”; “Avoid making the witness repeat the testimony on direct examination”; and “Avoid argumentative questions particularly those involving legal conclusions”.

 Justice Pronove sums up with three fundamental suggestions: first, always be in control; second, be flexible; and third, “practice the rules, and apply them, to become familiar with the art and technique of cross-examination.”

 At the end of the slim volume,  Justice Pronove appends two interesting pieces.  One is Scott W. Johnson and John H. Hinderaker article in the official  publication of the Minnessota State Bar Association, vol. 59, No. 9, October 2002 on the cross-examination of Hermann Goering during the Nuremberg Trial and the Rules on Electronic Evidence, A.M. No. 01-7-01-SC.

 The cross-examination of Goering was in the book obviously to serve as a good example of a bad cross-examination.  The presence of the rules on electronic evidence, without any comment or annotation, is, I suspect, a precursor of another great book.