Flip the Order of Your Adverse Witness Preparation

By Dr. Ken Broda Bahm:

Let’s say that in trial, your witness will be called adverse and will go through the other side’s cross-examination before getting a chance at your direct.[1]  But in your preparation sessions, you should still take them through your direct examination first. That’s what I call the “flipped” order, and in this post, I aim to make the case for this as the better approach. Most defense attorneys and witness consultants will intuitively follow the opposite order: Because your witness is likely to be called in the other side’s case, you start with cross-examination preparation because that is what happens first. But “preparation” does not mean just replicating the conditions of the actual trial. Instead, it means working to make things better by improving witness confidence and ability. For that, I’ve found that the flipped order is more effective.

Let’s back up and consider the problem from the witness’s perspective. When witnesses are called adverse – a common occurrence for professional liability defendants and some other defendants – it can be a pretty big deal. A little like walking into the lion’s den, their first experience of trial, and the jury’s first experience with them, will be in the face of the restrictive, leading, and accusatory style of cross-examination. Their chance to tell their story, for the most part, is going to have to wait. But when it’s your client, you should do everything possible to make that experience as painless and productive as possible. In that setting, confidence matters. A comfortable witness will have a much better chance of making it through cross-examination without giving up too much substance or credibility. So let me share a few reasons why I think the flipped order is more likely to build confidence.

Direct Examination Preparation Is the Foundation for Cross

Despite what opposing counsel prefers, a good cross performance for adverse witnesses means more than just saying “Yes” or “No.”  Good witnesses will still need to answer in a way that frames their position in the best light. Sometimes the defense attorney will downplay that need, saying “Don’t worry about it in cross, we will fix it later in direct.” But first impressions can be powerful. A good witness in cross — particularly in a cross that comes first — should not just sit there and get punched. A good witness will punch back, politely and without defensiveness, but still firmly. How does your witness know when and with what tools to fight back? Through the messages they learn and develop in direct examination. Preparation for direct examination builds the foundation for a more assertive cross-examination.

Direct Examination Themes Are the ‘Home Base’ for the Witness

Even though cross is conducted on the other side’s turf, the witness’s goal is to bridge back to their own turf as often as possible. Like a politician on a Sunday morning talk show, a good witness should aim to return to their own talking points frequently. Unlike the politician, the witness’s first priority is to answer the question, but the most effective witnesses do so in a way that ends with a transition back to safer ground. For example,  the med-mal defendant might answer the question, “So, you didn’t order the tests, did you?” with “No, I didn’t,” but would do better to answer, “No, I didn’t order those tests because they were not indicated by Ms. Smith’s symptoms at the time.” Because the questioner will not ask whether tests were indicated or not, it will be up to the witness to add that in. A great way to reinforce that habit is through a direct examination that thoroughly covers that content.

Direct Examination Practice Is the Confidence Builder

When a witness is in a position of being called adverse, then chances are there is a certain fragility to their position to begin with. In that context, starting the preparation session with cross-examination sends the message, “You’re accused, you have flaws and weaknesses, and a skilled attorney like me can easily trip you up.” Sometimes there’s a need to send that message. But in my experience, some defense attorneys take a little too much pleasure in showing their witnesses how easily they can be taken down a peg or two. And this demonstration of attorney skill doesn’t fix the underlying problem. Usually, the better message to send is, “You know this – you have a strong position and you made the right decisions.” This is a message that can really only be developed in direct examination.

The broader point may simply be that preparation on direct examination is important, even for the nonadversely called witness. Attorneys are tempted to think, “I am at the helm during this part, so I’m confident that I can control it.” As a result, they will spend more time focusing on the cross, when they’ll be seated at counsel table and their witness will be on the stand and on their own. But if we think about the witness’s mindset, then what matters most is confidence and clarity on message. And the best way to develop both is through a well planned and thoroughly practiced direct examination, whether that occurs first or second in the trial order.

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Other Posts on Witness Preparation: 

• Consider Confidence
• Counterpunch: Ten Ways to Fight Back on Cross
• Give Your Witness a Good Foundation: A Review of “The Perfect Witness” Online Training

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