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Handling a Hostile Witness: A Beginner’s Guide to Cross-Examination

Cohl K Love

Summary

  • Knowing the case is critical to developing an effective cross-examination.
  • Once you decide on the subjects of your cross-examination, you should create independent modules for each theme.
  • The main consideration in choosing an approach for cross-examination should be how the jury may perceive it.
  • Cross-examination is inherently adaptive, and listening to the witness is one of the most important pieces.
Handling a Hostile Witness: A Beginner’s Guide to Cross-Examination
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One thing attorneys can agree on is that law school does not prepare students for life in practice. Whether a law student moves on to public service, takes a position in-house, or joins a big law firm, there’s a steep learning curve for new attorneys. This is particularly so when it comes to oral advocacy.

This five-step guide to cross-examination endeavors to provide young attorneys with the basic knowledge required to prepare and perform cross-examinations of hostile witnesses while offering assurance to push for more meaningful trial roles early in any legal career.

Step One: Prepare

Knowing the case is critical to developing an effective cross-examination. This means analyzing as many documents and being involved in as many aspects of the case as possible. If you are at the center of knowledge on a case, you are well-positioned to cross-examine witnesses and leave an impression on the team. Such knowledge also allows you to identify key points to elicit from witnesses efficiently—the starting point of any great cross-examination.

Imagine P is suing for a back injury allegedly sustained after an electronic scooter manufactured by D independently engaged its brake, causing P to fall. P’s medical records show a history of chronic back pain and note that P refused a recommended examination before the incident. This point is vital to D’s case and should be included in the attorney’s cross-examination.

Others may not be so straightforward. For instance, cross-examining P regarding her sister’s job as a nurse may be prevalent if she made similar claims against a bike manufacturer last year, suggesting she has a tendency to manufacture claims of personal injury using her sister’s medical knowledge. The same point would not be as meaningful if she had not spoken to her sister for several years.

You may need to narrow cross points to focus the jury on certain issues. A deep understanding of the facts and case theory allows you to make these strategic decisions.

Step Two: Outline

Once you decide on the subjects of your cross-examination, you should create independent modules for each theme. This allows for flexibility—the modules are interchangeable based on a witness’s testimony. Suppose you ask P when the brake was triggered, and P states she saw a red light on the handlebar right before the intersection of Madison Avenue and 25th Street. You know that D’s scooters do not have a light and had planned on asking questions about that topic later, but instead, you turn to the red light module in real time.

When drafting, use concise, closed-ended questions. Instead of asking when D started selling electronic scooters, state the answer: “D started selling electronic scooters in 2022, correct?” Rather than ask if P purchased a “dual-motor, 1000-watt electronic scooter with foldable frame,” establish each of those facts individually:

Q:        P purchased an electronic scooter, correct?

A:        Yes.

Q:        It had a dual-motor?

A:        Yes.

Q:        It had a 1000-watt capacity?

A:        Yes.

Q:        And a foldable frame?

A:        Yes.

By separating these elements, you avoid a compound question objection, clearly establish each fact, and create a pattern of response, which is a valuable tool for witness control. These devices aid in the ultimate goal of drafting: crafting questions that will box the witness in.

A great cross-examiner can use logical questions to corner a witness. For example, imagine that D failed to follow company policy. You could ask D’s CEO whether D would take an action if they thought it would make its scooters safer. Any answer would benefit P’s case—if the CEO confirms, she is confronted with the fact that D did not take such action; if she denies, the company looks reckless to the jury.

Many attorneys are inclined to take their point one step further, asking the witness to admit that D was unreasonable in not following procedure. Avoid this instinct to “close the box.” Because the witness is unlikely to agree, you risk derailing your control. Further, there is little to be gained when you can just connect the dots in your closing argument.     

Step Three: Assess

Although television often depicts successful attorneys as sharks in the courtroom who push a witness around, that is often not the most effective way to conduct a cross-examination. Depending on the witness, there are different approaches you may want to employ. Take the hypothetical from above, but instead of a fall, P was propelled into traffic and tragically died. D’s CEO knew of the risk but continued to sell the scooter for profit. If you are crossing the CEO, you have more leeway to pressure the witness. However, if you are crossing P’s widower, you do not.

The main consideration in choosing an approach should be how the jury may perceive it. This is one of many reasons that your ability to read people’s reactions is invaluable in the courtroom, and those reactions will depend largely on the witness’s demeanor on the stand. If a witness comes across as sympathetic and reasonable, it is important that, as the crossing attorney, you adapt your tone appropriately. Where a witness is combative and irrational, acting incredulously may make more sense. Much of cross-examination is taking the approach that makes you seem like the sensical party in the interaction. At times, that means changing tactics at the last minute—cross-examination is an art form.

Step Four: Listen

Cross-examination is inherently adaptive, and listening to the witness is one of the most important pieces. If you become too attached to your script, you may miss key admissions that need follow-up, even when it leads to a line of questioning you did not outline.

Suppose you are cross-examining P in the scenario above:

Q:        On January 29, 2023, you were driving your electric scooter on Madison Avenue?

A:        Yes, I was driving D’s scooter, and it stopped out of nowhere, and I fell on my left shoulder.

Q:        Did you just indicate you fell on your left shoulder?

A:        Yes, I fell on my left shoulder and hit my back.

Q:        I’m pulling up what is in evidence as Exhibit 1 on the screen in front of you. This is the police report from the January 29th incident, correct?

A:        Yes.

Q:        Do you see where it says “P fell on right side. Complaints of pain to right shoulder”?

A:        Yes.

You could only impeach the witness by listening and responding to her testimony, even where that meant diverging from your outline. This is also another place where your knowledge of the facts helped you. Thus, the skill of cross-examination combines the breadth of knowledge acquired from your preparation with your ability to react to the witness’s testimony.

Follow-through in a cross-examination is vital. Suppose you ask P if she fell on her left shoulder, and she answers, “Well, I hit my back.” There are three useful tactics you can use to follow up on the witness’s answer:

  1. Clarification: “Was that a yes to my question?” This strategy is the simplest and most straightforward for achieving clean testimony.
  2. Redirection: “Back to my question, Ms. P, you fell on your left shoulder, correct?” Redirection indicates to the jury that the witness did not answer your question and may suggest that the witness is trying to hide something.
  3. Looping: “Understanding that you claim to have hit your back, you fell on your left shoulder, right?” Utilizing looping is useful in numerous aspects of litigation, but in cross-examination, it is particularly helpful when the witness has said something beneficial to the crossing attorney’s case, such as an inconsistency in testimony.

Any crossing attorney must be comfortable implementing these controls to achieve a successful cross-examination.

Step Five: Perform

The showmanship of cross-examination is often lost on attorneys but can be the element that sets a great cross apart. Your tone, inflection, facial expressions, and body language are powerful tools in telling your client’s story. It’s imperative for you to connect with the jury. This means that, during cross-examination, you may be looking at the jury even though you are directing questions to the witness. After all, during cross-examination, you—not the witness—are the star. Each dramatic pause, shifted tone, and raised eyebrow will send a signal to the jury and keep them paying attention.

Your skill at cross-examination will always evolve, and you will bring a unique perspective to the art form. Nonetheless, this guide sets out the basic framework for you to get started on your courtroom success.

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