Volume 18, Number 2
Preparing and Conducting an Effective Cross-Examination of an Adverse Witness
By Ervin A. Gonzalez
Begin your preparation by reviewing the entire file, including pleadings, other discovery, and correspondence. You may be able to obtain through discovery or informal investigation documents that the witness wrote or received. Obtain background information about the critical events that the witness experienced by means of document discovery or depositions of other witnesses or from your own client. If you have access to the witness, interview him by telephone or in person before taking his deposition to get an idea of what kind of person he is.
Next, prepare an outline or checklist of the points you need to cover and the answers you want. Write out terms of art or critical phrases so that you will get a clean transcript that you can use for trial. Otherwise, you may come away from the deposition thinking you got what you need, only to find when you look at the transcript that you or the witness fudged a word that renders an apparent concession worthless.
When taking a deposition, your goal is to obtain information that you need to learn about the case and to help you question the deponent at trial. Know what you hope to achieve in each deposition and organize your thoughts and approach before you plunge into the questioning. The oral deposition provides you with the opportunity to obtain valuable information and concessions and to assess the witness’s credibility, strengths, and weaknesses well before trial. It is okay to mix up open-ended questions and leading questions in deposition; ask questions that you do not know how the witness will answer in deposition (or risk omitting them and hear the testimony for the first time at trial). Probe for concessions through open-ended or leading questions, essentially experimenting through the use of common-sense assumptions, guesswork, logic, documents, and other information that you have obtained, to see if you can get the witness to make admissions that establish your theory of the case.
At least one week before trial, gather the information you have obtained about the case and the witness you intend to cross-examine and develop your approach to the cross-examination. Your ultimate objectives will be either to obtain supporting testimony or to neutralize or discredit damaging testimony, or both. Obtain supporting testimony by stitching together positive statements the witness made during his deposition, working them into declarative statements (i.e., leading questions) that you will recite during trial, and then by getting the witness to acknowledge these statements through yes or no answers.
With respect to neutralizing or discrediting damaging testimony, determine on the basis of all of the information available to you whether the witness is lying, mistaken, or simply lacking a sufficient basis to testify with certainty. These are very different things and must be developed differently. For example, you may attack a witness when you think he is lying, whereas you may be patient in helping the witness recognize a mistake.
Once you have decided on a theory of attack, summarize and index the deposition, focusing on all-important parts of the transcript that you intend to use as the basis of your cross-examination. In addition, create a summary and an index of the documents that you used in the deposition. Next, outline your trial cross-examination, designating in the outline the pages (and maybe the lines) of the deposition that will support your questions. Add the documents that you will use in your cross-examination to your outline.
In preparing cross-examination outlines, first ask those questions that will suggest witness bias in order to let the jury know up front that they are hearing from a partisan witness. Next, seek admissions and establish all factual points that are beneficial to your client. During that part of the cross-examination, try to make the witness your own. It is powerful to elicit testimony that is good for your case from somebody allied with the other side. Try to develop testimony that affirmatively supports your client’s case before you have to discredit the witness’s harmful statements, because the witness may be less cooperative after you have impugned his truthfulness or the accuracy of what he said. Finally, discredit or neutralize damaging statements that the witness made.
During your cross-examination, never reiterate the direct examination. Instead, limit your questions to matters that are good for your client and bad for your opponent. Use plain English, get what you need, and sit down. By the time you are in trial, you should know what you can achieve with a witness and how to achieve it. Prepare your cross-examination directly from the witness’s deposition testimony. Base your questions closely on the witness’s prior testimony (even using his own words) and proceed slowly, with short questions, one small step at a time. Do not let the witness explain anything unless the court allows him to do so. In the same fashion, you can construct a good cross-examination from helpful documents, particularly ones that the witness drafted or approved. If you use leading questions tailored strictly to the words in a document that the witness wrote, he will be hard pressed to change his story on the stand. If he does, he will look foolish, incompetent, or dishonest.
Arrange your questions in a logical order to tell an interesting story. It is critical, however, that you—not the witness—be the storyteller. During the cross-examination of an adverse witness, you will be testifying, in essence, through a litany of leading questions. Naturally, these should be questions with which the witness must agree. There may be exceptions when you will not care what the witness says, and you simply make a point by asking the question. But be careful about eliciting statements that will build a bad record while you are busy making some dramatic point.
If it becomes necessary to impeach a witness during trial, do this with a sense of drama and importance. To impeach a witness with prior deposition testimony in an effective manner, you must have the relevant pages and sections of the deposition indexed, marked, and highlighted beforehand. If you fail to do this, you may have to fumble through the transcript, thus losing momentum, control of the witness, and ultimately credibility in the eyes of the jury and the judge.
When a witness makes a statement at trial that contradicts what he has said in deposition, first emphasize the new answer and then ask:
• Do you remember that your deposition was taken on (state the date)?
• Do you remember that a court reporter was present at your deposition?
• Did you swear to tell the truth?
• Did you tell the truth on that date?
• (If applicable) Do you remember having your attorney present at your deposition?
After you have laid this foundation for impeachment, you should ask the witness the following question: Do you remember having been asked the following question and giving the following answer?
At that point, you should read from the deposition the question asked and the answer given. The impeachment will be complete. Do not allow the witness to explain the discrepancy in his testimony unless the court rules require it. The impeachment will demonstrate that the witness gave false (or mistaken) testimony in court. What is more, the prior testimony will come into evidence as substantive evidence that you can use in your closing argument at trial.
Because the jury will tend to remember best the last thing the witness says, ask questions that are most damaging to your opponent at the end of your cross-examination. This way, even if the cross-examination has faltered, you can end in control, scoring points where it really matters.
Finally, know when to stop. When you are preparing for cross-examination, give some thought to what you really need and what you will be satisfied with as the building blocks for your closing argument. Then, discipline yourself at trial to not get greedy after you have met your objectives.
Ervin A. Gonzalez is a partner with Colson, Hicks et al. in Coral Gables, Florida.
- This article is an abridged and edited version of one that originally appeared on page 19 of Litigation, Fall 2000 (27:1).