By Dr. Ken Broda-Bahm:
As a witness prepares to testify in trial, the big fear is often cross-examination. While the direct questioning by the witness’s own attorney is seen as the “easy part” (friendly, open-ended questions that allow you to “tell your story”), the cross-examination by the opposing counsel is seen as far more threatening (with “yes or no” questions, suggested language, and strategic traps). That fear is natural enough: Cross-examination truly is the part of testimony conducted by someone who wants the witness to fail, and to only help the side who is adverse to that witness.
As realistic as it is to be wary of cross-examination, my view is that witnesses are better prepared when they’re encouraged to see cross- and direct-examination as two sides of the same coin. That is, there are three things that ought to stay the same regardless of who is asking the questions:
- Topic: Both sides will generally focus on the same key issues.
- Tone: The witness should be confident, calm, and non-defensive during both phases.
- Purpose: The goal is to get the factfinders to understand the dispute from your perspective: What you know, did, or believe, and why.
So, for the witness, what is different from one phase to the next is just the questioning style that they’re facing. In that context, a good cross- performance is going to be based on good preparation for direct-, and a witness’s mission in cross- is just to get back to the same essential answers that they’ve covered, or will cover (depending on which comes first) in direct-examination. The witness won’t get the same latitude from the other side, because a good cross-examiner will aim to limit your response, but the witness facing the closed-ended and accusatory style in cross- can still try to get back to a condensed version of the responses given in the more open-ended and friendly phase of direct-examination. In this post, I will share a recommended sequence on how to build the foundation for that in witness preparation.
Step One: Build the Direct Outline
In preparation, attorneys will often start on the segment they’re more worried about: Cross. I think it makes more sense to start with the home base: what key messages does this witness need to get out, and how should those messages be delivered in direct-examination? The outline should address both the content that helps your case, as well as the responses to the content that is likely to hurt your case when the other side is up to bat. My rule of thumb is, if your adversary is likely to benefit from it, then cover it in direct-examination. The outline should also follow the attorney’s sense of sequence, but be based on the witness’s answers. It is critical for the witness to be closely involved in this preparation since it is their story and they need to own it. It is also important for the witness to know where they’re going. Even though direct- is friendly examination, witnesses can sometimes wonder “What are you looking for?” or “Do you want me to cover this now, or later?” It helps for both parties in the examination to know both the destination and the route.
Step Two: Practice Direct
What the witness and attorney produce in step one should definitely be an outline, not a script. No one wants the pressure of a witness trying to remember “lines.” Instead, you want a plan of how you’ll move through the topics. The witness should still be fresh and thinking in the moment while answering questions. Any plan will also need to be flexible, and a focus on the audience should entail a need to veer into other topics from time to time, so the witness will need to be flexible. Familiarity with both the plan and with the general talking points comes with practice. Instead of just talking about the testimony, conduct a mock direct. Don’t expect the witness to answer the same every time, since it needs to be natural and honest. But more practice also leads to more consistency on key concepts and language, so the main points come out strong.
Step Three: Identify the Critical Areas of Cross
You don’t have access to opposing counsel’s notes, of course, but as you get close to trial, you likely have a pretty good idea of what is on their mind. Use that analysis to identify a list, or a table perhaps, focusing on the areas that they’re likely to ask about in cross-examination. Within each, be explicit about their goals – what I call the “opposition’s target inference,” or what they hope a factfinder will conclude from a line of questioning. The prediction won’t be perfect, and witnesses should be prepared for the fact that the other side might ask questions that weren’t anticipated. If you’ve done your job in analyzing the other side, an unexpected question is still possible, but it probably isn’t a big deal.
Step Four: Practice Cross (with Direct in Mind)
The final step is to practice the anticipated cross-examination, modeling the goals and the style of the other side. Remind the witness, “we are covering the same issues already covered in direct-examination – the questioning style is different, but you should be tracking back to the same answers.” Also emphasize that the witness can’t be stumped or ambushed because all of the critical questions have already been covered in direct-. Because opposing counsel will be trying to exert control and to limit the flow of the answers, the witness will not be able to be quite as loquacious as they were in direct-examination, but the essential content and the core of the answer should be the same. Practice until the witness can respond with a calm confidence while returning to the familiar themes and language used in direct-examination.
Sometimes the cross- will come first, for example when your witness is called adverse in the other side’s case. In that situation, I recommend the same sequence of preparation outlined above, still starting with direct-. If in trial, the direct-examination happens right after the cross- and even when the full direct-examination won’t happen until later in your case, it will still help the witness to prepare them on their foundation first. Starting with direct- and making sure the witness knows that’s where they pivot during cross- gives them a good home base and safe harbor.
____________________
Other Posts on Cross- and Direct-Examination:
- Witnesses: Be Tough to Cross
- Your Direct Examination: Know the Steps, but Let the Attorney Lead
- Be the Director of Your Witness’s Direct Examination
____________________