When I attended law school (1988-91) there were few educational videos on the practice of law. The most famous one was Irving Youngers 1975 lecture, “Ten Commandments of Cross Examination.” His Fourth Commandment was “Don’t ask a question to which you do not know the answer.” Actual practice soon taught me that this commandment was half true. Certainly, one shouldn’t ask an open-ended question on cross examination that might allow the witness to pontificate in a manner that strengthens the other side’s case. But there are occasional times where the answer to the question can only help. One should be on the lookout for those situations.
A few weeks ago, I was trying a divorce case where one of the issues was attorney’s fees. I was cross examining the Plaintiff/Wife and one line of questions was intended to demonstrate her unreasonable litigation conduct. Wife began the case by seeking and obtaining an ex-parte order kicking my client out of the marital home. Wife’s affidavit in support of this ex-parte request included a claim that my client was falsely accusing her of “engaging in adulterous conduct.” Discovery subsequently demonstrated that this accusation was not false and that she had performed oral sex on the very man who my client was accusing her of engaging in such conduct four days prior to executing and six days prior to filing her affidavit. Under South Carolina divorce law oral sex qualifies as adulterous conduct.
So I asked her about this denial of “adulterous conduct.” She argued she hadn’t known what adulterous conduct meant—despite denying under oath that she had engaged in it. Looking for another way to demonstrate her falsehoods, I asked her about a paragraph in her complaint where she alleged she “has at all times honored her marital vows.” I asked her if those “marital vows” included a vow of sexual fidelity. Likely they hadn’t explicitly but she’d look foolish arguing the point. She answered “yes.” I then asked her to concede that performing oral sex on another man violated her marital vows. She responded by saying it only happened once prior to complaint being filed.
And thus she opened herself up to a cross-examination question that I didn’t care what her answer was. “How many blowjobs can you give other men until you violated your ‘marital vows?’” Surprisingly, she had an answer: “five.”
And now I will have an antidote I can regale colleagues and friends with the remainder of my career. Evidently, one is entitled to receive or give four blow jobs from persons other than your spouse before you violate your marital vows. It requires a fifth non-marital bj to condemn one to the bad spouse gulag. Good to know–and I would never have known had I obeyed Younger’s Fourth Commandment.
In most cross examinations there will be moments where any answer can only help your case. Be on the lookout for those moments.
