May 28, 2015 Articles

The Art of the Blind Cross-Examination: 8 Tips for When You Don't Know the Answers

What is an attorney to do when he or she confronts a witness who has not yet been deposed?

By Sanket J. Bulsara and Adam Hornstine

While watching her father cross-examine a witness in To Kill a Mockingbird, Scout Finch invokes the first rule of cross-examination that most lawyers—Atticus Finch included—learn: “Never, never, never, on cross-examination ask a witness a question you don’t already know the answer to...”

But what is a cross-examining attorney to do when he confronts a witness that he has not yet deposed? Notwithstanding the Federal Rules’ preference for eliminating surprise witness testimony from trial, attorneys are occasionally called on to cross-examine a witness blind, without the benefit of prior testimony that can be used for impeachment. For example: A true surprise witness may be added to a trial list on the eve of trial; a court may limit the number of depositions that a party can take in the case; a client may ask his attorney to limit the number of depositions taken to rein in pretrial costs; or you may be in an arbitration proceeding, where there is limited, or no discovery. 

This article provides some practical tips and principles to make sure that you can effectively cross-examine a witness the answers in advance.

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