Preparing A Witness For Cross-Examination At Trial

I litigated for twenty-five years, but then I swapped litigating for my in-house role, which involves supervising litigation. I’ve now been supervising for ten years, which means 1., I’m old, and 2., I’m out of practice, so I’ll never return to life at a firm.

I went through my old files, and I ran across my old crib sheet containing some of the general rules for preparing witnesses for cross-examination at trial. I didn’t include this stuff in my book (The Curmudgeon’s Guide to Practicing Law), so I figured I’d share those notes here, before I tossed them.

What do you tell all witnesses before they’ll be cross-examined at trial?

First: Do not change your demeanor on cross.

This is a big one, and witnesses routinely violate it. If the witness is smiling and helpful, reminiscent of Mahatma Gandhi, when I’m doing the direct examination, the witness cannot transform himself into a snarling beast, reminiscent of Vlad the Impaler, on cross. The jury will notice this, and the jury will hold it against the witness.

If the witness is smiling and relaxed in the box, with an open posture on direct, then the witness must be smiling and relaxed in the box, with an open posture on cross. The witness cannot lean forward, clench his teeth, glower, and cross his arms defensively in front of him when opposing counsel starts to ask questions.

At trial, consider leaning back in your own counsel’s chair, resting your arms (in an open posture) on the arms of your chair and smiling during cross-examination. That way, when the witness glances at you (as all witnesses do) during cross, the witness will realize that he’s changed his demeanor on cross and will, at least briefly, correct the error.

Be the same helpful person on cross as you are on direct.  After all, the jury’s watching.

Second: Answer in full sentences.

Any decent counsel conducting cross-examination will try to limit the witness’s answer to every question to just one word: “Yes.” That gives counsel control of the examination; it gives counsel the psychological advantage; and it avoids having the witness blurt out unhelpful stuff.

Thus: Tell your witness not to answer monosyllabically. Answer in full sentences instead. It’s not hard.

Cross, trying to elicit a one-syllable answer: “Your name is Mark Herrmann, correct?”

Bad witness: “Yes.”

Good witness: “My name is Mark Herrmann.” (Perhaps nodding, showing that the witness is trying to be helpful.)

Cross: “You’re wearing a white shirt; is that true?”

Bad witness: “Yes.”

Good witness: “I do have on a white shirt.”

This routine habituates the witness into answering in full sentences. It avoids falling into the trap of answering “yes” to every question. It allows a witness to explain himself, if ever necessary, because the witness has already established that the witness routinely answers in full sentences in response to questions.  And it permits the witness to correct bad questions:

Cross: “You’re wearing a white shirt and you’re a criminal, correct?”

Good witness: “I do have on a white shirt.”

Answer in full sentences.

Third: Own your answers.

Don’t be sheepish. Everyone will be impeached on cross. It happens.

So don’t look guilty when it happens. Look pleased and happy, like you’re winning. (The jury may not know who’s winning. If the witness looks happy, the jury may assume that the witness is ahead.)

Part of that game is owning your answers: Not, sheepishly, “No,” or “I guess not,” or “Maybe I was wrong.” Instead, confidently, “Of course not,” as though only a fool would think otherwise. Say it proudly: “Of course I shot my dog.”

Don’t look as though you’re being savaged on cross.

Fourth: Look where the jury is looking.

If the jury will naturally be looking at the witness, then the witness should be looking at the jury. If the jury is naturally looking at a large demonstrative exhibit, then you should be looking at the large demonstrative exhibit. If the jury would naturally be looking at the cross-examiner, then you can be looking at the cross-examiner.

That’s the way people act, and it’s right at trial. Do it.

Fifth: Use the headline theory of testifying.

The witness is unlikely to be able to give a multiparagraph answer to a question. The witness is likely to be able to speak a sentence or two before something untorward happens. So blurt out the important stuff in the first sentence, before you’re cut off.

You’re not writing a novel, element by element, on cross-examination, leading to the final denouement. Instead, you’re writing a newspaper article: Ninety percent of your readers won’t get past the opening paragraph. So don’t bury the lede. Put the important part of the answer in the first sentence.

Those are my five major rules.

There are, of course, a ton of other things that you might like to discuss with a witness before putting the witness on the stand.

Some of it is stylistic: Don’t talk too fast; that looks evasive. Don’t touch your face.

Some of it is just courtroom sense: Always smile after the judge rules on an objection. (The jury may not know who won or lost. But they’ll know that you smiled. That makes you the winner.) You’re on trial within a block of the courthouse. (Don’t park your $65,000 Mercedes near the courthouse. The guy parking the beat-up jalopy next to you will end up on the jury. Don’t criticize the judge in the elevator. The unknown person behind you in the elevator will turn out to be the judge’s clerk. In the bathroom, those stalls were not actually empty.)

But those rules will come with time.

For starters, you might just discuss with your witnesses the five general rules of cross-examination.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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