Cross-examination is why most people want to be lawyers. You’re the center of attention, and you get the “gotcha” moment where you win your case. The lawyer asks a sharp question, the witness squirms, and the truth comes out.
I’ve already written about why that TV trope almost never happens in real life. But it’s also worth knowing that even good lawyers can botch a cross. And between broadcast television, streaming, and social media clips, it’s easier than ever to watch one go bad in real time. This week, it happened on C-SPAN.
A quick programming note: Senate hearings are not trials. There’s no counsel there to “protect” the witness, the rules of evidence don’t apply, there’s no judge ruling on what testimony comes in, and most of these senators are just trying to generate content for their socials.
The setup
Let’s get into it. On Tuesday, Eric Schmitt, the junior senator from Missouri and a De Smet alum (BOOO De Smet, up the Red Devils always and forever), tried his best to generate some sick content. Instead, he ended up with several eggs on his face.
Anyone paying a modicum of attention knows the GOP has spent a lot of energy trying to vilify former special counsel Jack Smith and his investigations into President Trump. As part of that effort, Smith was called to testify before the Senate Judiciary Committee.
When Schmitt’s turn came, it was clear he thought he had some dirt on the former special counsel. He started a line of questioning about Smith’s whereabouts on February 3, 2024, the day after Fani Willis’s relationship with a prosecutor on her Georgia case against Trump became public.
Schmitt asked Smith point-blank whether he’d attended an NBA game between the Atlanta (formerly St. Louis) Hawks and the Golden State Warriors that night. Smith unequivocally denied it. Schmitt then briefly flashed a poster board of text messages, confident he’d sprung his trap and caught Smith in a lie that would amount to perjury.
But once Smith actually got a look at the texts, he connected the dots. That night, he’d been at a women’s college game between the Iowa Hawkeyes and the Maryland Terrapins in College Park, Maryland, just outside Washington, D.C.
I’m no fan of Senator Schmitt, and I didn’t vote for him. But politics aside, I try cases for a living, and this was a textbook example of what new lawyers shouldn’t do on cross. And Senator Schmitt is not a new lawyer. He’s held a Missouri law license since 2000, and he’s a former Missouri Attorney General.
Here’s the breakdown, lesson by lesson.
Lesson 1: Don’t ask a question you don’t know the answer to
Irving Younger was a legendary trial lawyer and law professor, and the mind behind the blueprint for effective cross-examination: the Ten Commandments of Cross-Examination. Younger gave the talk in 1975, which means his blueprint is older than most of the people reading this post. His fourth commandment, probably the best known of the ten, is don’t ask a question you don’t already know the answer to.
Watching Schmitt’s questioning, it’s clear he thought he knew the answer. His evidence was a text about reserving a seat. But a text about reserving a seat doesn’t prove much. At most, it shows someone reserved Smith a seat somewhere.
Any sports fan knows February is the middle of basketball season, with dozens of NBA and college games happening around the country on any given night. And plenty of teams, pro and amateur, go by some version of “Hawks.” Heck, my alma mater, Quincy University, is the Hawks.
Schmitt didn’t have the name of the arena, but he did have the section and row number from the text. Anyone could have checked whether that seat even existed at State Farm Arena, home of the Atlanta Hawks.
Instead of doing that basic prep, he put a yes-or-no question to a hostile witness based on limited information. He got a truthful answer, “no,” and it blew up his theory in real time.
How to do it right: If your information is limited or you can’t prove the answer independently, don’t ask the question. Either lock the witness into details you can contradict later, or leave it alone.
Lesson 2: Verify your exhibit before anyone else sees it
“Hawks” in a text message could mean Atlanta. But as I mentioned, a lot of teams go by “Hawks.” Figuring out which one takes a quick search: what basketball games were played on February 3, 2024, and which involved a team with some version of “Hawks” in its name? Schmitt or anyone on his staff could have found the answer in minutes.
It gets worse. As Talking Points Memo reported, the text asked whether “109 Row 1” was reserved for Smith. Arena seating maps are easy to find online, and one more search would have shown that State Farm Arena uses lettered rows in section 109, not numbered ones. The Maryland arena where Iowa played that night does have numbered rows in that section. In other words, Schmitt’s own exhibit disproved his theory.
After the hearing, Schmitt said Atlanta was the only NBA or men’s college game going on in Atlanta at that time. Read that again. A senator who has made protecting women’s sports a signature issue forgot to consider women’s basketball.
How to do it right: In my practice, an exhibit doesn’t go in front of a witness until someone has tried to break it. Ask what else it could mean. Look for the innocent explanation before opposing counsel hands it to the jury. That step got skipped, and the innocent explanation arrived live, on camera.
Lesson 3: Show the witness the document
When a witness says “I don’t recall,” a lawyer can “refresh their recollection” with a document, and doing that means actually showing it to the witness (see generally Federal Rule of Evidence 612, and every state version of it). Either the document jogs their memory and the lawyer gets an answer, or it doesn’t, and the witness is locked into a denial that might be grounds for impeachment later.
Schmitt did the opposite. He showed Smith the texts only briefly, characterized them himself, and jumped straight to a perjury accusation. When her turn came, Sen. Amy Klobuchar, a former prosecutor herself, insisted that Smith be allowed to actually see the exhibit. Once he did, Smith gave an innocent, concise explanation: he’d been at a women’s college game between the Hawkeyes and the Terrapins. Klobuchar’s summary was about as clean a closing as you’ll hear: “You had the teams wrong, sir.”
How to do it right: If an exhibit helps you, you shouldn’t fear showing it to the witness. If you’re afraid to let the witness see it, leave that exhibit alone. Refusing to show a witness your exhibit raises more questions than it answers.
Lesson 4: Don’t argue with the witness
Two more of Younger’s commandments matter here: don’t quarrel with the witness, and save your conclusions for closing. At trial, there’s a specific time for argument. It’s called closing, and it doesn’t happen between a lawyer and a witness on the stand.
Schmitt declared victory before he’d won anything. “I think you’ve already perjured yourself.” Later, “a total dirtbag.” When the exchange collapsed, all of that stayed on the record, attached to a factual claim that had just evaporated.
Here, the jury is the public, and juries punish overreach. Once a lawyer is caught confidently wrong, jurors start discounting everything else he says. By the end of the day, Schmitt was saying on a radio show that his job was just to ask the questions, and if that was Smith’s answer, then that was his answer. There’s no worse position than walking back your big moment the same afternoon.
How to do it right: Get the facts out on cross, and save the argument for the jury, where the witness can’t embarrass you in front of them. If you’ve questioned the witness effectively, the jury will reach the conclusion on their own, and they’ll believe it more.
Lesson 5: Make sure the point matters even if you win
Suppose Smith had been at the Atlanta Hawks game. Then what? It would take a lot more evidence to connect the dots the way Schmitt wanted to.
The theory needs every link in this chain to hold: Smith was in Atlanta, so he was near Willis. While in Atlanta, he met with Willis. In that meeting, they coordinated somehow. And that coordination is evidence of whatever nefarious dealings the GOP is currently suggesting.
But being at a basketball game proves that Smith was at a basketball game. More than 6 million people live in metro Atlanta. There has to be something more than “he was in Atlanta on that date” to suggest anything else. Schmitt’s point was speculation stacked on speculation.
How to do it right: A good cross builds toward a point that matters. Seasoned attorneys get the witness to agree with points that can’t be refuted: it’s important to drive safely, and when you’re driving, you should pay attention to the road. Schmitt was counting on Smith to hand him everything and simply agree with his conclusion. He never laid the foundation, and he tried to argue a point nobody has evidence for.
The other side of it
I’m not going to “defend” Schmitt, but as I said at the outset, a congressional hearing isn’t a trial. There are no rules of evidence and no judge. Sometimes a senator on an oversight committee will ask pointed questions with incomplete information. And Smith was at a basketball game on the date in question. It just happened to be in a different state, in a different league, with different teams, and with female players.
Schmitt’s position is that this is what hearings are for: you ask questions, and you get answers. He maintained that the texts could have related to the Fulton County prosecution. But once Smith explained where he was, that line of questioning should have been abandoned.
My view is that if the goal really was to gather information, Schmitt used the wrong method. Opening with a perjury accusation based on nothing but speculation isn’t going to get cooperation from a witness. It does the opposite. Schmitt should have shown Smith the texts and asked open questions, like “What’s this seat reservation about?” Asking questions is fine. Announcing the verdict before hearing the answer is the problem.
Why this matters for your case
Most people will never cross-examine anyone. But if you’re ever in a lawsuit, you’ll be on one side of it: sitting for a deposition, testifying at trial, or watching your lawyer question the other side’s witnesses.
The same rules apply. Good lawyers win on cross because of the preparation you never see: understanding every piece of evidence, anticipating every explanation, and knowing the answer before asking the question. When you’re hiring a lawyer, that’s what you’re really paying for.
The takeaway: the gotcha is earned in prep
The dramatic cross-examination moment you see on TV is the last 30 seconds of 30 hours of boring work. Verify the exhibit. Hunt for the innocent explanation. Know the answer before you ask. Show the witness the document. Save your conclusions for the jury.
Skip that work, and you don’t get a Perry Mason moment. You get a clip that trial advocacy instructors will be showing for years as the example of what not to do.
And whatever else you do: check the mascot.
This post is general commentary based on my own experience and isn’t legal advice. Every case is different, and how yours plays out will depend on its own facts. For actual injury questions: hurtinstl.com. New here? Learn more about me.
Cheers,
