How to better survive cross examination

Posted Saturday, February 18th, 2023 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Too often witnesses, especially litigants, treat cross examination as a battle of wits with the attorney questioning them.  This is a mistake. The easiest way to survive cross examination relatively painlessly and do minimal damage to the case is to answer cross examination questions simply, directly, and honestly.

What most witnesses fail to realize is that, if they are being questioned by an even minimally competent attorney, most of the testimony they provide on cross examination will help the other side—and that’s okay.  Few court cases are one-sided and those that are normally settle before trial.  The cases that go to trial tend to have compelling facts for each side.  From the attorney’s perspective, the goal of cross examination is to make the other side’s witnesses acknowledge helpful facts and to undermine that witness’ credibility.  The witness who simply acknowledges helpful (to the other side) facts actually renders the cross examination less damaging than it would otherwise be.

There are two reasons this is so. First, answering questions directly leads to fewer questions.  Too many witnesses get argumentative on cross examination or turn it into a battle of wits with the questioning attorney.  Horrible idea.  First, few witnesses are more skilled with language than the typical attorney.  One has to be relatively intelligent to get through law school and the intelligent folks who apply to law school tend to be those who are facile with language.  Further, attorneys have years of training and experience cross examining witnesses.  Few witnesses have had any training in cross examination.  Getting argumentative or cheeky with the examining attorney is almost always an unpleasant experience.

The more information one reveals on cross examination—and giving long winded, evasive responses to direct questions is to reveal more information than a leading yes-no question calls for—the more questions one will get asked.  Volunteering information on cross examination provides fodder for additional questions.  A truthful yes-no response to a yes-no question merely prompts the next question on the attorney’s list.

The second reason one should say less in cross examination is that it bolsters credibility.  A witness able to clearly answer open ended questions on direct examination should be able to answer leading questions on cross examination.  A sudden inability to answer the other side’s questions leads to an inference of strong bias (the court expects most witnesses to have some bias for the party calling them) and causes the court to discount that witness’ credibility.  All the good testimony on direct may be discounted if the witness gets evasive and argumentative on cross.

Very little testimony on cross examination is helpful to the case of the party that called the witness (with the exception of a defendant being called by the Plaintiff on cross).  I counsel my clients and witnesses to understand and accept this.  The goal of the party or witness on cross examination should be to say as little as necessary to answer the question accurately.  Those answers likely will not help the case but no other potential response will help the case more.

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