A very wise and very old litigator once commented to the writer that the secret of his success at trial was the fact that he never liked to be surprised. "Surprises pleased most children...never me. They scared me...and still do. If something happens at trial I didn't anticipate, that means I failed in my job in preparing for trial. They shouldn't be able to do anything, say anything or argue anything that I haven't already come up with and prepared to respond to." He would glare out the window, remembering the times he had been outmaneuvered and still resenting them. "You should spend as much time planning your opponent's case as your own...practice his arguments. Indeed, I normally prepare his closing statement to the jury before I prepare mine." He would laugh. "Most of the time the ones I made up for them were better than the ones they gave to the jury. Most of the time I would think up better ideas and arguments for their side than they did. You know why they lost?"
I would shake my head.
"Because they were too lazy to do the same to me...to prepare my case as hard as they prepared their own case...to practice my closing argument as I was practicing theirs."
You couldn't really argue with the man. He almost always won and he gloried in his reputation and lived only for his work.
He also once told me that for every minute of testimony on the stand one should anticipate spending an hour in preparation. "It doesn't matter if your client is the Pope or the finest expert in the world. It doesn't matter if it's the truth and all of us know it. Any good cross examination can still make him look like a liar and everyone who takes the stand gets stage fright. You have to practice with these witnesses so that by the time they get on the stand, it's almost a relief...they'd rather face the worst cross examination than practice with you another ten minutes!"
Then he would laugh and begin another one of his war stories.
That attorney died over two decades ago but the truth of what he said remains. In the American system of law, the witness not only has to present his testimony hemmed in by rigid rules of evidence before the eyes of a judge and/or jury, but must withstand cross examination by an expert trained to rip and tear any testimony to pieces and it is cross examination that is most enjoyed by the juries and it is in cross examination that the real drama of the court room seems to reside.
Lawyers spend much of their careers learning how to cross examine opposing witnesses and pride themselves on mastering the art. The average witness may testify once or twice in his or her entire life, is already nervous in the unfamiliar surroundings of a court room, and is at a severe disadvantage in that the lawyer sets the tone of the cross examination, selects which questions to ask, and has the right to compel the witness to answer most relevant questions.
Direct testimony is hemmed in by rules of evidence and procedure while cross examination has rules that favor the expert cross examiner thus make it a one sided contest in which the witness is at a decided disadvantage.
So, how does the witness survive the grueling procedure and present evidence that is convincing to the jury?
That is the subject to this article.
PRESENTING DIRECT TESTIMONY
You know the truth, know what happened, want to tell your story and are not about to be made a fool of if you can just tell what happened, right? Wrong.
The procedure for entry of evidence is complex and over the last three hundred years rules of evidence have developed to assure introduction of only appropriate evidence for a trier of fact. What works when you simply tell a friend what happened will not be allowed in court since the rules of evidence will strictly adhere and the court will simply prohibit you from stating such things on the stand.
It is up to the attorney and not to you to know the rules of evidence, but if you are to understand why substantial preparation is needed to prepare you to say what you know, a few examples of the rules might be worthwhile so you may understand why preparation is so critically required.
For example, if you want to testify as to what was told you by someone else to prove that what he said was true, you cannot. That is called hearsay and the courts require the person who said it to you to be present in court to testify. Why? Because the other side has the right to cross examine the witness as to the truth of what was said and if you are merely repeating what someone else said, how can that cross examination take place?
That sounds simple enough but the ramifications upon your testimony are remarkable. Let us assume you wish to prove that someone received a shipment of products that you are seeking payment for. He has denied receiving the shipment. However, you have a witness, your salesman, who heard one of the opponent's friends state that he had seen the products in his store. You want to put your salesman on the stand to repeat that statement as to what the friend said to prove that your opponent received the shipment. Can your salesman so testify?
No, for it is hearsay. Only the friend could so testify and he must be in court so that the other side may cross examine him. If you cannot call the friend to the stand to testify directly as to what he saw, you cannot put that matter into evidence. If the friend has left the state or has disappeared, the testimony will never be received.
Another example? You have documents prepared by your ex employee which show you paid for an item, perhaps a ledger or a cancelled check that he signed on behalf of your business. The ex employee prepared them, signed them, but is no longer reachable, perhaps has disappeared into another state. Can you enter those documents into evidence? Probably not. Why? Written documents are hearsay minus the testimony of the person who prepared them....for again, how could anyone cross examine the documents? Your opponents have a right to have your ex employee actually present so they may cross examine him or her.
Yet...IF those records were prepared " in the regular course of business," as part of the ex employee's regular duties and so demonstrated , then they MAY be entered into evidence under an exception to the hearsay rule. Consider that...if your bookkeeper who normally wrote the checks has disappeared but you have the checks, you can get the matter into evidence. But if someone else, such as your secretary, wrote the check because the bookkeeper forgot or was absent that day, then they were not prepared by the person who normally did so in the regular course of business and the check will be rejected because it is hearsay.
And on it goes, with literally hundreds of rules of evidence, a veritable mine field of rules and procedures that can hobble a witness and disallow evidence that people in everyday conversation would clearly accept as true. This necessarily forces your attorney to carefully craft your testimony and the introduction of evidence so as to avoid violating such rule. But the challenge is even greater-for despite such rules you must be prepared to present a coherent and, indeed, compelling story to the jury which will make them wish to find in your favor, a jury who knows nothing of the rules of evidence, cares nothing for the rules of evidence, but wishes to hear the story told in a honest and believable way.
One wag compared presenting direct testimony as trying to declare one's love for a woman for three hours in a believable way hindered by the rule that one can not use the words, "you," "love" or "true" with the woman not knowing that you are restricted in that way. You must avoid stilted phrases, you have to communicate in a sincere and simple manner...but you must do it with hidden restrictions on all sides, most of which will never be known by your hearer.
How do you do that? By carefully honed and often practiced preparation of each phase of your testimony.
Your lawyer will write out all the questions and together you will prepare all your answers keeping in mind the rules of evidence, omitting any testimony that would be objectionable, but constructing the testimony in a manner that is entirely natural to both you and to the judge and jury. This is a process requiring close communication and cooperation with the trial counsel and requires that at the end of the process you will feel comfortable with what you say and how you say it...but what you say will not be destroyed by the well founded objections of opposing counsel.
You must engage in extensive preparation to make a very unnatural process...telling the truth in a formal setting hindered by three hundred years of arcane rules...seem natural and believable.
THE PROCESS OF CREATING DIRECT TESTIMONY
Typically, you will be interviewed extensively by counsel or the paralegal who will determine the events that transpired and how you know what you say you know. You may have told your lawyer this information months or even years before, but you will soon find that in presenting your story to the judge and jury you must retell it in a unique manner subject to the rules of evidence and integrated into the other testimony of perhaps a dozen other people, both your own witnesses and your opponents. A good trial lawyer will want to give the judge or jury an entire interesting story, presented in an order that is easy to understand and with a mix of witnesses that may interest the most and perhaps throw the opponents off. You may find that your testimony is best presented after someone else who knows the facts...your salesperson for instance...has already testified since that person seems better able to "sell" the case to the jury and you are better as reinforcement of already presented testimony. You may find that your attorney does not want you to even mention an area of facts you consider vital because he thinks it might confuse the jury and interfere with the immediacy of other testimony.
In short, trials are a form of sales presentation and morality play, with rules of evidence sowing often absurd restrictions, and your lawyer is the producer who must develop the entire production. Thus, the paralegal interviewing you does so under the harsh light of the rules of evidence and in light of other testimony and evidence discovered during the course of the case and once that is taken down and placed in outline form, your lawyer will begin drafting the questions and outline answers for you to review, making a coherent story. Those proposed answers are shown to you, confirmed as both true and in keeping with how you wish to present the story in light of your own personality, and then subjected to the rules of evidence so that an objection will not suddenly destroy an entire line of questioning. Again, perhaps an example will illustrate.
EXAMPLE ONE: THE COLOR OF SHOES...
You know that the opponent, a shoe wholesaler, accepted your delivered shoes as acceptable in quality because you know he sold most of them at full price. You told that lawyer that when the case began.
When the paralegal interviews you, he asks how you know. You shrug and say you saw them in the stores, knew they could only have come from your shipment since the style was unique, and, besides, a store owner who bought them from the wholesaler told you. The paralegal asks where the store owner is. He died six months ago. Does it matter, you ask? You know what he said to you.
Of course it does matter since his comments are now hearsay and he can no longer testify. All that is left is that the style was unique and you recognized it in the store. But we cannot stop there. The paralegal asks how you know it is unique. You shrug and say the color of the leather was very unusual. How do you know, asks the paralegal? Because you special ordered it and part of the order was a particular color you had designed. You begin to get angry and tell the paralegal to stop wasting your time.
The paralegal goes on the internet and calls you next day stating that he found at least three sources to obtain precisely that same color and that the factory you special ordered it from makes it for others...and has already been subpoenaed to so testify by the other side.
In short, your entire testimony is nearly useless and you would have been destroyed on the stand in cross examination. Even if everything else you said was true, the jury would assume you are ignorant of the truth and cannot be trusted.
Your lawyer now has the job of finding out how he can present such evidence. Perhaps your lawyer can contact the factory and find out that all the other orders were shipped to stores far from your location. Perhaps he can get a sample of the shoe and determine if the precise color is identical in all the orders...but the point of the paralegal's efforts is to both blunt what would have been destructive cross examination of you and to educate both you and the legal team that other sources of evidence that the shoes were sold must be found.
Preparing your testimony is thus unlike all the previous work with your legal team and once the final outline is created, then your team will practice having you testify several times so that you are familiar with what questions will be coming, are familiar with the facts that you must know, and will not answer in a way that the other side can object to as in violation of the rules of evidence. The procedure for you to authenticate documents that must be admitted (you have to identify them or the signature, etc.) will be practiced so it goes smoothly and your demeanor and nervous gestures that might distract the jury or judge will be discussed and hopefully minimized. Yet all this must be accomplished with you feeling that the testimony is still "you," that it is not so foreign to you that you are merely reciting someone else's lines in a play. That is why your active and constant participation in your testimony is so vital.
At some point, after perhaps twenty or thirty hours of preparation and practice, you will begin to feel comfortable with your testimony, will understand how it fits into the overall case, may even begin to look forward to presenting it to the jury, knowing that the rules of evidence have been carefully reviewed so that your proposed testimony will be stated without disruptive objections from the other side...
And at that point it is time to prepare you for cross examination, a process that is, if anything, even harder to handle.
SURVIVING CROSS EXAMINATION AT TRIAL
It is useful for the reader to read the article on this website educating the witness as to how to survive cross examination in deposition, including the ten rules to remember when testifying before a hostile counsel in a deposition, This article will assume that the reader has read those rules, many of which apply to testimony at trial, and shall not repeat them here.
Deep inside many of us there lies a fantasy, fostered by movies and television, often kept secret but just as often emerging when someone decides to take the stand and testify. Most of us envision entering into a dual of wits with the evil opposing counsel, sharp minds and words being exchanged while the jury looks on and you leading the attorney on until, to his shock and dismay, you suddenly testify to something that destroys his case before the jury, makes him appear a complete fool, and in that one instance of revelation, wins the case entirely for you. The attorney slinks back to his chair while the judge looks at you approvingly, nodding sagely, perhaps even dismissing the other sides case entirely. You leave the stand amidst the admiring approval of the entire court room, shaking hands with your happy attorney.
Forget it. Not only will it not happen, but if you try to do that on the stand you will be utterly and completely destroyed by the opposing counsel. You cannot win in cross examination. All you can do is survive it and not lose too much...and hope that your direct examination by your own lawyer...and your lawyer's cross examination of the other side...will allow your case to prevail.
It does not matter how true and strong you think your case is. It does not matter how smart you are or how stupid your opposing counsel is. The rules are set so much in favor of the attorney on cross examination that you literally do NOT have a chance to prevail in any real verbal dual.
No, the skill you must develop to be a good witness on cross examination is the skill of not engaging in any verbal dual at all. Your job is not to make a mistake, to answer truthfully but in as brief a manner as possible, not to lose control, not to fall for the many cross examination techniques described below...and to save your version of the story for the redirect testimony that your lawyer can allow you to present after the cross examination is completed. Remember: if you wish to explain, the way to do it is normally in REDIRECT which your lawyer is allowed to do after the cross examination. Answer the question, do not volunteer anything, and expect to get your chance to expand your answers when your lawyer engages if the follow-up questions of redirect.
TYPICAL TACTICS OF CROSS EXAMINATION
For each question you are asked in cross examination, your opponent will have spent time carefully preparing the question, pondering your possible answers, and preparing his or her next questions based on any possible answer you can give.
Believe this: for each ten minutes of cross examination the competent counsel will spend over two hours in preparation. The questions may seem casual or even off hand. They are not. They are honed to make you say what you do not want to say.
Before trial your lawyer will "play act" with you extensive cross examination so that you can get the feel of the ebb and flow of a typical cross examination and learn how to react correctly. A few examples of the typical techniques used by experienced counsel should give you some idea of the challenge you face on the stand.
Any novice attorney is quickly taught the first rule of cross examination: NEVER ASK A QUESTION TO WHICH YOU DO NOT KNOW THE ANSWER THAT THE WITNESS MUST GIVE.
What does that mean? It means that in cross examination the lawyer wants no surprises, despite the scenes in the movies and television. The lawyer has already written out all the areas that he or she wishes to cover in the cross, the points he or she wishes to make and each question is to force you to answer in such a way that it assists the creation of that case.
The attorney is well aware that you do NOT want to help your opponents create the case and will try to avoid answering in such a way that assists them...so they use documents, prior depositions, or other evidence to impeach any answer you give that does not conform to precisely the answer they wish...and if your answer alters from that prior document or deposition, they will impeach you with it on the stand.
Further, if you have evidence that hurts their case they will NOT ask you questions that will bring that answer out...they will usually ignore that entire area of questioning and no matter how much you want to volunteer that, no such questions will be asked. (Your solution is to make sure your lawyer asks you in your direct examination, of course.)
Further, any good lawyer will create a "Cross Examination Answer Tree" in which any possible answer you give must help their case and which they anticipate and prepare in advance all questions to pose to you to hurt your case no matter how you answer.
What follows below are two examples of techniques in cross examination that will be used by competent opposing counsel and how to counter them: more will be discussed personally when you are prepared in "play acting" by your lawyer several weeks before trial:
EXAMPLE ONE: THE TAR PIT, LITTLE ANSWERS LEADING TO LARGE ADMISSIONS
Opposing counsel has already written out all of his or her questions and your possible answers, has follow-up questions so that no matter how you answer you are ultimately brought to an answer that he or she wants, has all the documents to impeach your testimony if you alter it from previously stated positions, but now faces the problem of how to make you admit something that he knows you will deny when he or she has no documents as to the relevant transaction with which to impeach you. If he or she just asks you the question, you will deny it. What technique is available to make you either admit what he or she wants, or make you look like a fool? How do you handle it?
We call this the Socratic Method of Cross Examination. Rather than ask the question really at issue, you start with seeming irrelevant and distant questions with obvious answers and continue in that vein until the witness suddenly realizes that he or she is now "trapped" and must appear an idiot or admit something.
Let's take an example.
You have sued your real estate broker for fraud, saying he sold you a house which had a defective roof after he had been told about it. You claim he never told you and you had no way to know, both of which are critical to the success of your case since if you knew or should have known about the roof, you did not rely on his advice. He has stated he thought you knew.
Let's assume that you are planning to testify that you did not know about the condition of the roof of the house you were planning to buy and had no way to know it had defective roofing. Opposing counsel wants to prove you knew or should have known. If he asks you, you will simply say you did not know and had no reason to suspect. What can he do?
Q: Sir, you have owned homes before?
A: Yes, this was my third home.
Q: All purchased in California?
A: No, one in Idaho, two in California.
Q: And, of course, you therefore sold three homes as well?
A: I don't understand what you mean.
Q: You sold the ones you owned before buying the next one, isn't that correct?
A: Yes, sure.
Q: And do you recall your listing agreement that you executed with the brokers selling your prior homes?
(Your Lawyer): Objection, your Honor, this is irrelevant to the current case...we are speaking of the purchase of this defective home, not past purchases.
Court: He may answer. Goes to his level of knowledge.
Q: Sir, you may answer. Do you recall the listing agreements when you sold your homes?
A: Not really.
Q: Sir, I happen to have here the three listing agreements you executed to sell your prior homes. Do you recognize them?
A: (Reading them) Well, these are each three pages long, I don't really remember much about them.
Q: But you do recognize your signature, correct?
A: Sure, that's mine.
Q: And you read them before you signed them, isn't that true?
A: I suppose so...
Q: Are you saying you executed contracts without reading them?
A: No, no, I am sure I read them.
Q: Please read paragraphs three on the first two contacts and paragraph six on the third contract.
Your Lawyer: Your Honor, this is going very far a field and is a waste of time. I don't see how this relates.
Opposing counsel: I will tie all this in, your Honor.
Court: Do so soon, counsel. I will allow these questions, subject to a motion to strike.
Q: You have read those paragraphs, correct?
Q: Please read out loud to the jury the bold wording above paragraph three in the first contract.
A" SELLER understands that SELLER must disclose the condition of any defects in the structure and do so in writing or that SELLER may be liable for undisclosed defects. These defects include foundation, roof, walls, electrical, and soils."
Q: And, pursuant to those clauses, when you sold your homes, did you fill out a disclosure notice form?
A: I really don't recall. I suppose so...
Q: Sir, I have the three disclosure forms for those three homes here. Would you like to see them?
A: II you say you have them, I am sure I signed them.
Q: Indeed, you wrote out disclosure notices three times in the past five years, correct?
A: That sounds right.
Q: And in each case you knew you had to disclose any defects to the BUYER, right?
Q: And that was done to protect the BUYER, right?
A: I guess so.
Q: And you knew it was required by law in California since you sold two of those homes in California, correct?
A: I'm no lawyer...
Q: But you just read to us the clause that told you it was required on the contracts that you testified you read, is that not true?
A: Yeah, I guess so.
Q: Don't guess, Sir. You had read that clause, is that not true?
A: Yes, I read it...some years ago.
Q: So when you bought this house you knew that a Disclosure Statement as to defects had to be written by the SELLER for your protection, is that not true?
A: I don't recall what I was thinking during the time I bought the house. I was thinking lots of things.
Q: Sir, after signing three disclosure statements as a SELLER in which you carefully had to list each and every defect you knew, are you now stating you had forgotten that this was required of SELLERS in a real estate transaction?
(Your Lawyer): Your Honor, he is argumentative and badgering the witness.
Court: Your objection is sustained. Ask the next question counsel.
Q: Did you ask your broker in this particular transaction for the Disclosure Statement of the Seller?
A: I assumed he would show me all the documents that should be shown to me.
Q: So you did not ask for that Statement of Disclosure?
A: I don't recall.
Q: As you testify here today, do you recall asking for the Disclosure Statement?
A: I just don't remember.
Q: Sir, you knew such a statement was required by law, you knew it would list any defects, you knew that such defects were vital to whether you would purchase the building...yet you don't recall even asking?
A: I may have, I just don't recall.
What are the lessons of the above line of questioning?
By going into past transactions in which the witness was a seller, the lawyer has established that the plaintiff may have been negligent in not getting the disclosure statement as to the roofing that he knew, as a matter of law, was required. The witness was caught off guard by not even recalling those past transactions, not thinking he would be asked what he did when he was a seller, and not realizing that as a seller he had learned that the law required such disclosure.
How could that technique had been avoided by preparation? If the witness had been properly prepared, it might have gone like this:
Q: Sir, you have owned homes before?
Q: How many?
Q: All in California?
A: One in Idaho.
Q: The rest in California?
Q: Do your recall the listing agreements that you executed with the brokers selling your prior homes?
A: Not in detail.
Q: I have here the three listing agreements you executed. Do you recognize them?
A: (Reads) Yes, they appear to be the ones.
Q: That's your signature.
Q: You read them before you signed them?
A: I am sure I did.
Q: Please read paragraph three on the first two contracts, the ones that pertain to California sales.
A: (Reads the relevant paragraphs.) Yes?
Q: Please read out loud to the jury the bold wording.
A: (Does so.)
Q: Pursuant to these legally required clauses, you filled out the disclosure notice forms?
A: I certainly did and I advised my broker to give them to the BUYER immediately.
Q: So, you knew they had to be shown to the BUYER to protect you as a SELLER?
A: Yes. And my broker in each past transaction gave them to the BUYERS as he should have.
Q: Sir, did you ask your broker in this transaction for the disclosure statement?
A: Of course not.
Q: Of course not? But you knew it was legally required.
A: I expected my broker to give it to me. He was being paid to handle the transaction so I assumed he would get it to give it to me. That's his job.
Q: But you did not ask for it and you knew it was required, true?
A: I assumed that if he did not give it to me, there was nothing on it.
Q: But you didn't ask, did you?
A: No, I relied on him to protect me.
What can be learned from the second example?
The power of the cross examination is reduced significantly by a witness prepared to answer the questions in the right way ahead of time...which is why play acting is critical.
But is also shows that a good cross examination is already "armed" with documents ready to catch any answers that are not absolutely true or which try to evade...and that explanations, if sought by the witness, will have to be saved for REDIRECT.
But the real lesson? The witness must practice, practice , practice and not expect to "win" on cross examination-you win on your DIRECT; your job on cross examination is not to lose too much.
Let's look at another example of errors on cross examination that can be rectified by practice.
EXAMPLE TWO: THE FOLLY OF EVASION: DON'T WIGGLE
Let us assume the attorney wants you to state in evidence that you knew ahead of time that John was incapable of performing under the contract because John had told you he was broke and could not even hire his own workers to work on the project. The lawyer's goal is to make you support that position.
The questioning and answers could go like this:
Q: Sir, you were a business associate of John at the time the contract was signed, correct?
A: What do you mean by "business associate?"
Q: You had done business with him before and still were doing some business with him?
A: Well, yes, some...
Q: And you knew that absent adequate economic resources he could not perform under the contract with my client, correct?
A: I didn't know the details of the contract with your client.
Q: Regardless of the details, you knew John had to have some money to at least pay his subcontractors so he could perform?
A: He never discussed it with me.
Q: But you knew he had to hire people and knew those people had to be paid?
A: He never discussed it with me.
Q: Sir, you were a business associate, had worked with him in the past, and now you say you didn't know he had to hire people to help him work?
A: I didn't say that. I said he didn't discuss it with me.
Q: And I asked if you knew John had to have some money to at least pay his subcontracts, right?
A: I suppose so.
Q: Did he discuss his finances with you before the current project?
(Here we have a typical question tree set up...a good lawyer will have alternative series of questions to hurt your case regardless of how you answer... Assume the answer is "no...")
A: I never discuss his finances with him. It' s none of my business.
Q: Sir, I have here, as Exhibit A, a letter apparently from you to your brother in which you discuss John's finances. Would you read the first paragraph.
A; (Reading) "As for John, I think he is real trouble economically. I'm darned if I know how he's going to come through on the job..." Yeah, but when I wrote that I was just guessing.
Q; You did write that letter, though, did you not?
A: Yes, but I was guessing.
Q: And you made that guess because you saw or heard something about John's finances, right?
A: Not really. Just guessing.
Q: But you guessed based on some evidence, did you not? You didn't just make up a story to scare your brother, did you?
A: Well...not really, but I was not sure.
Q: But you were worried that he could not finish the job even then and stated so to your brother, is that not true?
A: (pause). Yes, I guess so.
(But let's assume he answered "Yes" to the question of discussing finances...)
A: We occasionally discussed finances. Nothing formal, just casual chatting.
Q: And he told you he was having some economic problems, didn't he?
A: Not really. Not that I recall.
Q: You thought he was having economic problems, right?
A: I'm not sure what I was thinking then. It's a long time ago. Maybe.
Q: Did you ever communicate to anyone that you thought John was having economic problems?
A: I don't recall. It's a long time ago.
Q: How about your brother? Ever tell your brother that?
A: My brother has nothing to do with this. I am tired of your tricky questions and it's irrelevant.
Q: Sir, the judge will determine what is relevant or not. Just answer the question, please.
(Opposing Counsel: ) Your Honor, he's badgering the witness. I would object.
Court: He can answer the question.
Q: Sir, did you communicate to your brother that John was in economic trouble?
A: I don't know. I may have. Who knows?
Q: Sir, I show you this letter....
What lessons can be learned from the above?
1. The witness was doing all he could to avoid answering a question that the lawyer was going to force him to answer no matter what...since the lawyer had the evidence to nail him no matter how he tried to evade it. All that occurred was that the jury and judge no longer trust the witness who clearly is evading telling the truth...and the more upset and insulting the witness became, the worse he looked.
2. The lawyer stayed calm, knowing he had all the tools and did not rise to the bait of the insult. By remaining calm and professional, he makes the witness look even worse.
3. The witness should have known that the lawyer would not ask a question without having the means to force the witness to answer the way the lawyer wants. Sooner or later the answer will be given and the more you evade, the worse you look.
4. The witness kept volunteering his opinion, annoying the jury, achieving nothing, and simply making the Jury more interested than ever in hearing an answer that the witness is not anxious for them to hear. By fighting the attorney, the witness made his situation much worse.
Your lawyer will tell you that while you should not volunteer evidence that will hurt your case, if you have evidence that the cross examiner is going to get out anyway, just give it quickly and get it over with...compare the above with the following:
Q: Sir, you were a business associate of John in the past?
Q: And you knew he would have to have finances to engage subcontractors to perform on this project?
A: That's normally the case.
Q: Was it true for this job?
A: I am sure it was.
Q: Isn't it true that you knew he was short on money when this job began?
A: It was a long time ago. I'm not sure if I knew but I probably did.
Q: Did you communicate to anyone your concern that John had not money?
A: I don't recall but it's certainly possible.
Q: I show you this letter and ask if that is a letter you wrote to your brother around the time this project began.
A: (Reading) It is and I see I told him that John was short on money. I didn't recall the letter but it does not surprise me.
Q; So you knew he was short of money?
A: I must have or I would not have written the letter...
Note that the same harmful evidence comes in...it was going to no matter what. The difference is that the witness does not look tricky or evasive and the matter quickly is ended without the jury becoming fascinated by the witness wiggling (without success) on the stand.
EXAMPLE THREE: THE FALSE EMOTION OF LAWYERS: TAKE IT FOR WHAT IT IS...AN ACT
Another common cross examination technique is to make the witness emotional, usually angry or defensive, with gentle baiting or gentle sarcasm, to embarrass the witness on some trivial matter and while the witness is still flustered, to immediately launch into areas of examination that are truly critical.
Lawyers have to be careful since a bully is normally disliked by a judge or jury, and sarcasm is a poor technique. Righteous anger or pure disbelief is a better technique to make a witness suddenly begin saying too much, or gently shaking one's head in disbelief or a shrug. This can be extremely effective if the jury is looking at the witness rather than the lawyer and do not see the sarcastic shrug or raising of the eyebrows.
All of us hate to be embarrassed or mocked in a public setting and react emotionally or angrily. Lawyers are well aware of this tendency and if you have been able to avoid the typical traps a clever lawyer will try, you may expect testing of your ability to withstand the illusion of contempt.
While sincerity and, at times, firm anger is certainly appropriate in such examination, to become flustered, defensive or out of control is not only inappropriate, but demonstrates to the lawyer that he or she has surmounted your defenses and you are ripe for extended questioning in critical areas.
And the more emotional and angry your answers, the happier the lawyer as he or she goes through carefully prepared examinations, prepared with the calm and cool professionalism of years of experience while you, angry or upset, not thinking but reacting, will probably fall into trap after trap.
How do you stop that eventuality from occurring?
Remember it is a game to the lawyer. He or she, if money was placed on their desk, would just as likely be sarcastic at the other side as at you. They are using a technique to overcome your most vital defense...the ability to think calmly. And they are doing it with the cold ruthlessness of a professional.
Your task is to react with equal professionalism. You can make your anger felt in a calm but effective manner with the emphasis on calm. An example should suffice, first bad, then the right way.
Assume he or she wishes you to feel angry that your car hit a child that ran into the street. You contend you were not negligent, the child ran out without looking and there was no way to stop. They, of course, contend you were speeding.
Example of the Lawyer Winning the Battle:
Q: Sir, you hit the child while driving quite fast, is that not true?
A: No, it is not and I resent that. I was driving at the speed limit.
Q: The speed limit?! Yet you hit the child...and hit him so hard that his body was knocked over twenty five feet?
A: That's a lie. He was knocked about ten feet.
Q: Ten feet?! Well, that's a relief. I presume you measured it?
Your Lawyer: I object, your Honor. He is baiting the witness and that is argumentative.
Court: Sustained. Counsel, just ask the question, save your argument for closing
Q: Sorry your Honor...the answer just struck me as remarkable. Sir, you say you knocked my client's child ten feet, not twenty five. I assume you didn't measure it?
A: Of course not. The police measured it. I am not a monster...
Q: Of course you are not. I am just wondering how you know the number of feet the child flew through the air before hitting the ground. Am I to understand that you feel ten feet means you were traveling at the speed limit?
A: I was below the speed limit. It was not my fault.
Q: So, you feel the child was at fault, that you had nothing to do with it?
A: I can't be blamed for the child running out like that. It's his parents' fault, not mine. I was only going at the speed limit.
Q: His parents' fault. I see. And that was because he was allowed out to play? You felt that in that case the parents are to blame?
A: Yes, if he got hit.
Q: You were driving next to a play ground, right? The child was in a playground. So his parents shouldn't have let him play in the play ground?
A: Not if this was going to happen. It's their fault. They should have been watching.
Q: Watching, you say? But they were fifty feet away at the bench. The ball bounced into the street. You were the one close by, not them, isn't that true?
A: It's their responsibility, not mine. Their fault.
Q: You saw the sign on the street saying, "Play Ground, Slow"?
A: Of course. But that doesn't absolve them of watching their own child. They blame me when they should be ashamed.
(At this point the mother of the injured child starts crying, the father, glaring at you, holds her tight, and the jury glares at you and even if they agree with you, dislike you intently. Why? Everything you said was possibly true...but you have attacked the parents of an injured child, caused them to react before the jury in a way that the jury will sympathize with...and there was no reason to do that except you became defensive and emotional. )
Compare that to this line of answers in which the Witness remains in control and remains sympathetic:
Q: You hit the child while driving quite fast, is that not true?
A: No it is not.
Q: You were over the speed limit were you not?
A: No, I was under the speed limit.
Q: Under?! But you were driving so fast that the child was knocked twenty five feet by your car, isn't that true?
A: No it is not. I believe the police report said much less, but the point is I was under the speed limit.
Q: So you asked the police how far his little body was thrown?
A: Of course not. All I cared about was getting him medical help. I read the police report much later.
Q: But it's not your fault, you are saying, that this child was horribly injured?
A: No, it is not my fault, though I feel horrible about it.
Q: So, it's the parents' fault? They are to blame for this injury though you drove the car?
A: I am sure his parents are suffering horribly. I know they must love their child very much. I don't know whose fault it is...perhaps it is no one's fault. But it certainly was not my fault. I was not speeding.
The first example had the witness tricked into attacking the parents. The second had the witness sympathizing with the parents...but still denying responsibility. In the first case the witness reacted to an attack. In the second, the witness blunted the attack and the lawyer was the one who appeared unreasonable...and unlikable.
THE GOLDEN RULE OF SURVIVING CROSS EXAMINATION
1. PREPARE FOR YOUR TESTIMONY EXTENSIVELY WITH THE HELP OF COUNSEL. DO NOT ASSUME THAT BECAUSE YOU KNOW WHAT HAPPENED THAT YOU ARE READY TO TESTIFY.
2. REVIEW EACH AND EVERY DOCUMENT THAT YOU ARE TO TESTIFY ABOUT.
3. PRACTICE BOTH DIRECT AND CROSS EXAMINATION WITH YOUR LAWYER NO SOONER THAN TWO WEEKS BEFORE TRIAL BUT AT LEAST THREE DAYS BEFORE TRIAL.
4. EXPECT TO ATTACKED ON THE STAND. EXPECT TO BE INSULTED. EXPECT TO MAKE MISTAKES. AND EXPECT THAT MOST OF THAT WILL NOT MATTER...UNLESS YOU LET IT MATTER BY BECOMING TOO EMOTIONAL TO THINK
5. EXPECT TO SPEND ONE HOUR OF PREPARATION FOR EACH TEN MINUTES OF TESTIMONY.
6. DO NOT EXPECT TO "OUT THINK" OR OUT WIT YOUR OPPOSING COUNSEL. HE OR SHE HAS DONE HUNDREDS OF EXAMINATIONS AND THE RULES ARE ON HIS OR HER SIDE. YOUR JOB IS NOT TO MAKE A MISTAKE, NOT "WIN" THE EXAMINATION.
7. EXPECT STAGE FRIGHT. EXPECT TO BE EXHAUSTED AFTER ONLY AN HOUR ON THE STAND. EXPECT TO FEEL FOOLISH AT TIMES. IF YOU THINK THAT YOU ARE DOING A GREAT JOB, THAT IT IS NOT SO HARD, AND THAT YOU ARE BEGINNING TO ENJOY IT...YOU HAVE PROBABLY FALLEN INTO THE WORST TRAP OF ALL...ARROGANCE...SOMETHING EVERY CROSS EXAMINER HOPES ABOVE ALL TO ENCOUNTER IN A WITNESS.
We started this article with a story about a famous trial attorney and let me finish with a story about my very best witness.
Lawyers, doctors, and intelligent people in general usually make poor witnesses, mostly because they violate rule #7 above. Personally, I am a terrible witness...a judge once told me to "shut up" while I was testifying...it was not my case, he said. I had thought I was doing quite well.
My best witness was a very nice and not very smart man locked in a dispute with a much more intelligent plaintiff who could outthink and outtalk him any time. In preparing him to testify, I gave him all the lessons above and by the time of trial he was so terrified that when opposing counsel asked him his age he asked to speak to me...and whispered to me the question, "Does he mean in years and months or just years?" He left the stand visibly shaken, indeed, his hands were shaking. He was convinced he had lost the case and that the other party would make him appear a fool.
Both of the parties testified. She was bright, opinionated, confident, testified for hours and presented long lectures to me, hardly letting me ask questions. She was clearly brilliant and knowledgeable and let us all know it.
When she was finished I asked the judge for a directed verdict since she had admitted that my client was just too foolish to have convinced a third party to have breached the contract, the very thing she had argued all along. She could not hold in her contempt for my client, had to emotionally blurt out how foolish he was.
And the court promptly dismissed her case.
A good witness is not the smartest witness, not the most vocal witness, not the most glib witness. A good witness tells the truth, stays calm...and prepares long and hard for the trial. A good witness understands that a trial is a ritual, not a "contest" of abilities to prove intelligence.
Thus anyone can be a good witness...if they work hard, prepare hard, stay calm...and avoid over confidence.
As the nursery rhyme goes, it is the tortoise that wins the race, not the rabbit.