March 31, 2014

Counterpunch: Ten Ways to Fight Back on Cross

By Dr. Ken Broda-Bahm: 

2838568941_0c29f08dfa_z A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, “Well, at least I got to tell my side in direct,” or, “My own attorney will give me a chance to fix all of this in redirect.” Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility.

The way I’ve explained it before is that cross-examination is, for the witness, a polite struggle. “Polite” because the witness can’t afford to come off as too combative or uncooperative — “I’m just here to tell the truth…” should be the tone. But “struggle,” because there is a skilled advocate at the lectern who’s job is to, at least for the moment, support his story and not yours. A good witness needs to work against that purpose. Like any advice, the message to “fight back” can be taken too far, or not far enough. It is a matter of balance and practice, and it clearly helps to get feedback during a prep session or two to make sure the communication is assertive but not aggressive. With these considerations in mind, here are ten ways witnesses can maintain their own power while being cross-examined. 

1.  Give Your Own Headlines

Here is the worst advice I’ve ever heard given in cross: “There are only four answers you need: ‘Yes,’ ‘No,’ ‘I don’t know,’ and ‘I don’t remember.’” That minimalist role for the witness just allows counsel to write their own script and do most of the talking, while the witness is just chiming in from time to time with rubber stamp agreement or ineffectual denial. Instead of reducing the answers to these four, a good witness will aim as often as possible to respond in a way that gives a newspaper headline of what the explanation would be,e.g., “A diagnosis can only be based on the indications that are present at the time.”

2.  Front-load Your Answer

Opposing counsel is generally looking for a “Yes” or a “No,” and they certainly have a right to it. Answering in a way that promotes your side of the story without including a clear and evident response to the question is a recipe for getting a condescending “Please listen to the    question…” from the examining counsel or, worse, from the judge. Answering “Yes” or “No,” and then putting it in your own words and filling in your explanation, is a good way to reassure  counsel, judge, and jury that you are indeed tracking and doing your best to be responsive. 

3.  Use “Yes, but…” and “Yes, and”

When the examiner is carefully phrasing the questions, the witness can be led to feel, What can I say other than ‘Yes’? It sounds bad, but that’s the true answer.” It may be, but it is rarely the whole story. To the extent that witnesses can flesh out the “Yes” and place it in context, they are creating a better and more assertive overall impression. Adding in the “…but” is a natural way to supplement the answer, but because too many “buts” can sound defensive; a nice twist is to replace that word with “and” or “because.” “Yes, I ordered the test and I relied on the treating physician to implement it.”

4.  Address the Implication, as well as the Question

There are two parts to a question: What is being asked (“Did you check labs?”) and what the questioner hopes to imply through the question and the answer (You were too busy or too careless to check on your patient). While witnesses cannot get too tied up in thinking about why counsel is asking each question, it does often help to answer questions in a way that addresses the obvious implication wherever possible: “No I didn’t check on the labs because I know there are specialists who are already doing that.”

5.  Use Your Bullets

Witnesses preparing for cross cannot learn an outline as they can for direct, because the choice and order of questions is up to opposing counsel and they’re not inclined to share that information in advance. However, it is still possible to create a written tool that provides witnesses with some important help in cross. I will often encourage witnesses to develop their own two-column notes. On the left side, place each key area of cross along with the implication that the other side hopes to draw from that area; and on the right side, create your own bullets: one for each reason or theme you can use in response. The list can’t be memorized verbatim or, God forbid, brought to court, but it can be a great way for witnesses to structure and to remember their own general thoughts in response to a number of predictable questions.

6.  Get Beyond the “No”

The favorite themes for the examining attorney will often focus on the negative: What you didn’t do, see, know, consider, check, etcetera. When the true answer is “No,” that is of course what the witness must say. But a long chain of “Noes” can still create a poor overall impression. An assertive witness will work to mix it up by getting beyond a simple “No” as often as possible. If counsel is asking whether you got a second opinion on the x-ray, you could say, “No, I didn’t” or you could say, “No, it is never the standard procedure to do that.” The latter sounds much stronger.

7.  Flip the Question on Its Back

Here is another response to opposing counsel’s approach of focusing on the negative by forcing you through a chain of “Noes:” When answering, flip the question back by focusing on what you did do. When a doctor is asked whether he checked the patient’s heart rate at the end of the procedure, he could simply say “No,” or he could say, “No, I checked heart rate at the beginning of the procedure and then visually monitored the patient throughout the procedure.” 

8.  Enumerate Your Answer

Numbers are memorable and focus a listener’s attention, so if there are two, three, or more answers to a question, consider enumerating them. “Yes, and there are three reasons why I did that.” In addition to providing an envelope for what may be a complex answer, this style of previewing also serves as a form of insurance against getting cut off after you initially say “Yes” or “No.” If jurors know that you have three things to say in response, then counsel can still say something like, “Well, you can cover those reasons with your own counsel in redirect,” but that comes at a cost. Because jurors want to know, the examining attorney will often just let you finish. 

9.  Rely on Direct As Your Foundation

When challenged, the strategy is to answer that challenge while getting back to one of your own ground. And the place where you develop and communicate that ground is in direct examination. Whether a witness is called adverse and cross-examined first, or whether they get to begin with direct, that planned discussion with their own counsel should serve as a foundation for cross by covering all of the critical themes and by previewing all of the important questions likely to be heard in cross. So for the witness, the goal is often to just get back to what you have said, or will say, in direct. 

10.  Pick Your Moments

Of course all of these strategies cannot be used every time in response to every question. Effective witnesses will choose their moments with the understanding that they don’t need to tell their story in response to every question. Doing that looks defensive but, at frequent intervals, jurors need to see that story and know that the witness is still hanging on to it despite opposing counsel’s best efforts.

Some of these rules run up against the well-intentioned advice to “just answer the question…”  An attorney who is seeking control or who simply doesn’t trust their own witness may justifiably want to discourage the use of many or all of these strategies for a given witness. But, for most witnesses, I maintain that cross is a critical opportunity to show that the witness appears to be winning, even when directly challenged by the other side. Plus, for the witness, counterpunching from time to time always feels better than just taking the blows. 

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Other Posts on Cross-Examination:

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Image Credit:  Danny PiG, Flickr Creative Commons

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