Evidence Legal Topics Litigation Strategy Trial Strategy

9 Things to Tell Your Witness Before Cross-Examination

Part of preparing your witnesses for trial testimony includes preparing them to be cross-examined. Witnesses often worry that trick questions will make them say the wrong thing or that they’ll be made to look foolish. Tell them the following and they’ll be ready to handle any cross-examination.

  1. Be honest. Tell your witnesses that, after you’ve finished questioning them, the other lawyers will get a chance to ask questions. Explain that there’s no way the other lawyers can trick or embarrass them as long they answer questions honestly and straightforwardly.
  2. Don’t exaggerate or hold back. Witnesses often exaggerate or try to withhold information that they think is unfavorable to their side. Tell your witnesses to listen to the questions carefully and answer them directly, but not to volunteer information. Advise them to answer the questions with “yes” or “no” whenever possible, and if they can’t, to say so and go on to give their answer.
  3. Don’t guess. If witnesses don’t know the answer or don’t remember, they should just say so. Emphasize that they should never guess at the answer. Tell them to say what they saw or know, but don’t try to fill in the gaps with what they think must have happened. They shouldn’t give opinions or estimates unless asked for them. And never repeat what someone else told them unless specifically asked to do so.
  4. Admit to not understanding. Advise witnesses to say so when they don’t understand the question, and let the cross-examiner ask it again. Tell witnesses that, if they think they understand the question, but aren’t sure, they can rephrase it themselves. For example, they might say, “If you mean such and such, then my answer is thus and so.” But they shouldn’t give the impression that they’re sparring with the cross-examiner or trying to avoid answering a legitimate question. Remind them to let you do the objecting—if the question isn’t proper, you’ll object to it.
  5. Be patient. Witnesses should always wait until the lawyer finishes his or her question, answer it, and then stop. The lawyer may appear to be waiting for the witness to say more, but if the lawyer wants to know more, let him or her ask another question.
  6. Focus on giving correct answers. Tell witnesses that, as long as their answers are correct, there’s no reason to worry too much that the answers might be incomplete or misinterpreted by the jury. Remind them that you’ll get a chance after the cross-examination to ask further questions that will clear matters up.
  7. Stay calm. Usually lawyers only badger witnesses if it appears the y aren’t telling the truth. But it’s possible that the cross-examiner will try to needle a truthful witness anyway. Admonish your witnesses not to argue with the cross-examiner, but rather to keep calm and hold their tempers. That will make the cross-examiner look foolish.
  8. Admit to preparing to testify. Explain that the other lawyer may ask whether the witness has talked to any attorneys about the testimony. As you’ll be actually preparing the witness to testify when you explain this, the answer is obviously “yes” and it’s entirely proper.
  9. Admit to getting a witness fee. Another common question is, “How much are you being paid for your testimony?” Witnesses should answer that they aren’t being paid anything for their testimony, but they are getting the witness fee provided by law. Witnesses should also say whether they are being compensated for the pay missed by coming to court and by whom.

Learn more about the tactics against cross-examination in CEB’s California Personal Injury Proof, chap 1. And check out CEB’s Effective Direct and Cross-Examination and related program Evidence: Tips for Effective Direct and Cross Examination.

Other CEBblog™ posts  you may find useful:

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