What Not to Do in Cross-Examination

Inherit the Wind (1960)

As a labor arbitrator and hearing officer, I’ve listened to dozens, if not hundreds, of witnesses being cross-examined. In legal training, there’s a lot of focus on how to examine a witness. Baby lawyers learn how to ask a direct question versus a leading question, how to lay a foundation, and how to craft a question to avoid objections.

There are great books and programs that teach people examination skills, but they don’t spend much time on the tone that a lawyer should deploy to effectively cross-exam a witness, so lawyers learn from tricks from television. This leads to all kinds of theatrics: escalating aggression, gotcha questions, and fake sarcasm are always on tap.

If you’ve ever found yourself using one of those tools, please read on. I might be the first neutral to tell you this, but they don’t work. Here are my top tips for tactics you should avoid if you want to keep a judge, jury or other neutral on your side.

Don’t punch down: Most witnesses have never testified under oath before. They’re nervous, and the whole format of testifying feels stilted and alien. There’s someone typing everything they’re saying, and two lawyers are arguing about their words before they can even answer a question. Many times, they are testifying because of a subpoena, or because their employer has requested that they appear. All this is to say, they aren’t usually willing participants in the hearing.

It drives me crazy when the opposing attorney, someone the witness has never met, employs bullying tactics against a witness. It’s especially irritating when the witness was either subordinate to their client in some way or are obviously not familiar with the legal environment the lawyer swims in. When a lawyer beats up on a person like that, the neutral feels protective of the witness or causes the neutral to want to intervene to change the tone of the examination. While the attorney may feel like that’s not appropriate or fair, it’s a natural reaction of a neutral to de-escalate situations. We are in favor of learning the truth, not destroying someone because their memory doesn’t benefit the attorney’s client.

Neutrals try not to draw adverse conclusions about the case from this behavior, but attorneys should recognize when the line of questioning suggests arguments that might not favor their client, such as an indication that the client supports excessive aggression towards or mistreatment of subordinate individuals.

Don’t manufacture credibility issues: First-person eyewitness testimony is gold standard evidence in hearings but it’s also a historical artifact of the English system. By the time issues get to a fact hearing, most people’s memories have faded or confused, and the emotions they felt at the time of the incident often cloud their recollection. For example, a man wielding a knife in Times Square was apprehended by a police officer. Multiple witnesses reported that the police officer had used a gun to subdue the man, but video evidence showed that the police officer had not drawn her weapon. Her testimony and the photographs taken at the time supported the fact that her gun stayed in its snapped-tight enclosure. But witnesses couldn’t shake their beliefs about what they had seen because it was a very stressful event that happened in a crowded place.

When a witness does not remember perfectly the events that occurred long prior, attorneys should not treat this witness as a liar. Neutrals are aware that memory degrades, testimony can be suggested and that witnesses are trying to please their questioner, even if they are adversarial. When a lawyer acts as though a memory problem is a lie, that doesn’t impeach the witness. In fact, it feels like bullying again, and it doesn’t look good for the lawyer.

Here is an example of a cross-examination I recently witnessed.

Attorney: How many staff members were in the room that day?

Witness: I’m not sure, I remember me and Dawn, and there were more people by the end, but I don’t know the number.

Attorney: I need you to estimate how many staff were in the room that day, please.

Witness: I really can’t say. Maybe five?

Attorney: Who were they?

Witness: Again, I can’t really remember. It was more than two years ago.

Attorney: Are you covering for someone?

This question is intended as an attack on the character’s witness and not designed to elicit useful information. Therefore, it shouldn’t be used. There are effective ways of impeaching a witness (that is, demonstrating that they are not truthful) that do not involve character attacks. Besides, who has ever answered “Yes” to the question, “Are you a liar?”

3. Don’t go on a fishing expedition through the documents: Sometimes lawyers don’t know what to ask a witness. They may have prepared some questions, but they aren’t sure what the witness is going to say at the hearing. This is more common in administrative hearings and arbitrations where there haven’t been any depositions but there’s no reason that a lawyer can’t anticipate the areas that each witness will address, and which documents they might be asked to discuss. On more than one occasion, I’ve seen lawyers flip through piles of exhibits, asking random questions about the facts to see if they can elicit some information that might damage the other party’s case. To the neutral, this doesn’t look like Perry Mason, it looks like a lack of preparation. Not every witness needs to be cross-examined about every single fact. The best lawyers limit their questions to reinforce the arguments they intend to make. It isn’t uncommon for good lawyers to not cross-examine a witness at all.

Don’t invent conspiracy theories: Occasionally an attorney will spin a defense that involves blaming a whole group of other people or organizations for collaborating in the destruction of their client. While fraud and conspiracy are real criminal offenses, they are rarely the cause of their client’s bad situation. As with the example of manufactured credibility that I gave above, alluding to elaborate schemes meant to frame a client is not an effective strategy for convincing the neutral that your client’s story is the one they should believe. Most neutrals have an “Occam’s razor” view of their cases. The most straightforward explanation is probably the one that fits. It’s important that all of your questions point toward a straightforward story, and not a ruse concocted by five other people and the Deep State.

Which is not to say that sometimes, people aren’t out to get their client. I have seen plenty of cases where the supervisor and the person’s co-workers did not like an employee, so everything that the employee did was interpreted in a negative way, and they were never given the benefit of the doubt in the way other people might have been. If that’s the story, tell that story. If the employee is not well-liked, is treated differently, and is being retaliated against for speaking up, you have a straightforward story that a neutral will understand and is likely to be elicited from co-workers on cross-examination.

Don’t enumerate their failings: Witnesses are there to testify about the events that form the basis of the issue before the neutral. They aren’t there to be reminded of their personnel records, their divorces, their mental health issues or their criminal records. The only relevant former misconduct that should be raised in cross-examination concerns truthfulness. If they were terminated for lying or have perjured themselves in some other proceeding, that’s relevant to their truthfulness. Otherwise, leave the skeletons in the closet.

Don’t ask the same questions over and over again: If a witness doesn’t remember something, or they gave an answer that your client doesn’t like, I can guarantee you that asking the question repeatedly isn’t going to refresh their memory or cause them to change their answer. More likely, the repeated questions will annoy the neutral and aggravate opposing counsel, who will draw you into a series of arguments that make you seem like you don’t understand what their witness is saying. Make your record and get out. If you don’t like what they said, move on and hope no one remembers it. They will, but it won’t sting as much if you don’t pound it into their heads.

I write, parent, arbitrate, not necessarily in that order. Please subscribe to my newsletter: https://tinyletter.com/AndreaLD

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