By Dr. Ken Broda-Bahm:
Cross-examination is a big deal for a key witness. I’ve noticed in trial that it gets some added attentiveness from the jury. Knowing that they’re now seeing one side pitted directly against the other, jurors will sit forward a bit in their seats to see who gets the better end of the deal. Even after a very good direct — perhaps especially then — a witness still has a lot to lose, or gain, once opposing counsel takes the lectern. Particularly when you have a savvy witness, or you are one, it’s important to devote some preparation to the idea that the witness stands to not just survive cross-examination, but to thrive in it as well.
For the witness, the first goal is of course just to answer the questions clearly and honestly. But starting with the hard fact that the other side is trying advance their own case with your help, you want to strike a fine balance. You want to make that difficult for them without coming across as “difficult” by the jury. For those witnesses with some understanding and experience, I think it can be done. For those witnesses, and for those who are helping them prepare, I believe there are seven good habits that help create a witness who is tough to cross.
1. Know Your Prior Testimony Cold
The first step for a witness is to know the full terrain that opposing counsel will ask about. Where there is a prior record — a deposition, affidavit, report, etc. — it makes sense to start there and to know that material very well. I’ve written before that a very complete practical recollection of prior testimony is a witness’s sword and shield, protecting the witness from mischaracterization and alerting them to opportunities to return to your main messages.
2. Stay Relentlessly Polite
A good witness should be assertive in defending themselves and their testimony, but should never be aggressive toward opposing counsel or the court. Strive to get your point across, but don’t fight. You don’t want the jury to see you as defensive, or as an advocate — just another lawyer. Practice keeping your face and body relaxed, keeping your tone measured and pleasant, and your words respectful and patient.
3. Embrace the Role of Being Helpful…to the FactFinders
Your goal isn’t to help opposing counsel. But ultimately, you are not talking to opposing counsel. They get to ask the questions — and, to be clear, they have a right to your answers. But you are answering to the jury. Keep your focus, not on the adversary who is attacking you, but on the jurors who are just trying to understand. Your vocabulary and level of explanation should be geared toward a juror’s likely comprehension and attention. Your tone should be one that conveys, “Here’s what you (the jurors) need to understand.”
4. Know the Tricks
You don’t need to go to law school and become a lawyer, but a little understanding of “Cross-Examination 101” is a good thing. Start with the case-specific idea of what the other side is trying to do with your testimony: Their strategy, goals, and themes. Then add to that a broad understanding of the toolbox that attorneys tend to use in cross examination. They’ll try to plant language, leverage small inconsistencies, and get you out of sync with the timeline or the records, for example. They may try to get you to concede to oversimplified standards contained in “Reptile” questions. The more you understand and anticipate these tricks, the more prepared you are.
5. Don’t Be Led
The biggest cross-examination trick, of course, is to lead the witness by asking an “Isn’t it true…” question in a way that suggests the preferred answer. This appeals to an attorney’s North Star in cross-examination: the mantra to “control the witness.” Counsel will aim to do that by picking the testimony and offering it to the witness for their confirmation. A prepared witness will resist that, not by fighting over language, but by simply expressing the answers in their own words. Instead of just answering “yes or no,” answer in a complete idea, a sentence that you constructed yourself.
6. Know Your Home Bases
The attorney on the other side will not give you the floor to say what you want to say. But if they did, would you know what you want to say? Would you know the central points relevant to your role in the case that are essential for jurors to understand? A good witness should have these answers in mind. Know your talking points, and use those main messages as a “home base” to return to when it is relevant and responsive to the question. Ultimately, it is about answering the questions, but when you can answer them in a way that returns you to your own ground, that will be memorable for jurors.
7. Counterpunch When You Can
Because you want to stay polite and get your message across to a jury, you don’t want to treat cross-examination as a fight. But when there is a polite way to score a point, I think a good witness should take that opportunity. If you can respond to a question while pivoting it to end on a strong point for yourself (“…and that is why any other choice would have carried a greater risk“), then that can create a strong impression with the jury — and the fact that you made the point to opposing counsel’s face makes it all the more impactful. The witness who tries to do this on every question will be seen as annoying or defensive. But the witness who picks their moments and does this once or twice can be very strong.
There’s one final benefit for a witness: a witness who is tough to cross often makes for a short cross. Counsel ends up just making the few points they know they can make, and cuts it off. That’s a win.
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Other Posts on Thriving in Cross-Examination:
- Treat Cross-Examination Questions as a Flashlight in a Dark Room
- When You’re Crossed, Handle the “Voice of Reason” Questions
- Counterpunch: Ten Ways to Fight Back on Cross
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