Preparing Witnesses for Cross-Examination at Trial
Calvin Walden adn Lawrence Stierhoff | New York Law Journal
May 11, 2015
"[Mock cross-examination] is a method indispensable to giving the defendant confidence … . His hope and courage are built up. His morale is strengthened, and the morale of your case is of all things the most important, even as it is in war."
Lloyd Paul Striker, "The Art of Advocacy," 24-25 (New York 1954).
Preparing witnesses for direct examination at trial is a laborious process in which much time is consumed drafting and redrafting direct questions, preparing exhibits and demonstratives, and rehearsing with the witnesses. However, truths are generally revealed at trial through cross-examination, not direct, and thus it is essential during witness preparation to leave sufficient time to prepare the witness for cross-examination as well.
The key to any good cross-examination preparation is a good mock cross-examination. A good mock cross-examination can strengthen the entire case, and result in a witness that is not only better able to maintain his credibility while undergoing the real thing, but, properly practiced, can improve the witness's own comfort with the process that he or she will soon endure. In order to do so, the mock cross should be as close to the real thing as possible. The attorney performing the mock cross-examination should aim to break the witness down quickly, systematically, and completely. From these ashes, she should aim to build him back up into the best possible witness he can be.
This process is, and should be, uncomfortable for the witness by design. One commentator has suggested that the attorney conducting the mock cross-examinations "miraculously transform [herself] from the considerate and congenial person [she] really [is] into a belligerent and heartless ogre, tormenting and oppressing the witness by twisting the meaning of the testimony." Jeffrey L. Kestler, "Questioning Techniques and Tactics" §9:37 (3d ed.). This demonstrates the general rule that should be followed during mock cross—that the experience be as close as possible to, or even worse than, the cross-examination that the witness will endure on the stand.
The need for such stark reality can, predictably, undermine the relationship that an attorney has with a given witness. For that reason, it is recommended that one attorney be designated as the primary point of contact for each witness as the direct is prepared, and that a second attorney conduct the mock cross-examination. This will also make the process more realistic—the witness will not and should not know or trust the attorney that will cross-examine him at trial.
Mock cross-examination will frequently influence the scope and tenor of direct examination as well. While the ultimate goal is to arm a witness for the ordeal, the reality is that a mock cross-examination may reveal that there is no saving him on some issue or fact, and that it may be best abandoned—or at least treated in a different manner during direct. Sometimes these weaknesses only come out after a trial-by-fire, and, in litigation, forewarned is forearmed.
With these goals in mind, this article suggests the use of some more specific techniques relevant to four aspects of the mock cross-examination process. First, the witness should be prepared for the mock cross (and the cross). Second, the attorney conducting the mock cross should take the necessary time to prepare a cross outline with sufficient controls. Third, the actual mock cross should be given in as realistic a manner as possible, preferably after a practice direct. Fourth, the witness should receive feedback and tips on her performance, and the trial team should work with her to improve it in the future. Time permitting, this fourth step should involve follow-up practice cross-examinations.
Witness Preparation for a Mock Cross
The attorney that serves as the primary contact for a witness should take the time, while preparing the witness for her testimony, to explain the overall process of direct- and cross-examination to her. The attorney should explain to the witness that a mock cross-examination will be conducted in order to prepare for the real thing in the courtroom. The attorney should explain that the mock cross-examination will be aggressive, and that the witness may feel attacked—indeed, that is the point.
At this preparation session, the contact attorney should emphasize, above all, that the witness always answer truthfully. Indeed, it is essential that the witness understand how badly her credibility can be damaged by testimony that is felt by the factfinder to be untruthful or lacking in full honesty. This is often demonstrated to the witness in the mock cross.
It is important to give the witness some basic instructions for cross-examination. The mock cross will allow for assessment of her incorporation of these lessons, and will have useful teachable moments. However, in order to maximize these benefits, the witness should have certain basic instructions in mind from the outset. One text provides a useful and succinct list of instructions for cross-examination, although many others exist:
• Listen to the question.
• Answer the question that was asked, not some other question.
• Don't volunteer any extra information.
• If you don't know, say so.
• If you don't remember, say so.
• Don't try to sell the case.
• Don't argue with the cross-examiner.
• Don't look to me for help during the cross-examination. Unless I object to what the other lawyer is doing or interrupt what's going on, you are doing fine.
James W. McElhaney, "McElhaney's Litigation," 112 (American Bar Association, 1995).
Expert witnesses can benefit from a few additional, basic pointers, that are specific to the nature and scope of their testimony:
• Defer to other experts when necessary.
• Only concede the obvious.
• Be consistent with direct testimony.
• Keep responses short and succinct.
Preparing the Expert Witness for Cross Examination, SP011 ALI-ABA 199, 207.
Finally, it is the case, of course, that it may not always be possible to secure another attorney to conduct the mock cross-examination. In this case, the primary contact attorney should take special care to explain the role that she will play to the witness, and the benefits for the witness, during the preparation session. This preparation is crucial to avoiding collateral effects on the interpersonal relationship with the witness.
Attorney Preparation for a Mock Cross
"Above all, practice the actual cross-examination with the witness. Talking about the cross-examination can only go so far. The witness needs the experience of actually being cross-examined in a realistic environment."
Thomas A. Mauet, "Trial Techniques," 502 (8th Ed., Wolters Kluwer 2010).
The attorney designated to conduct the mock cross-examination of a witness should prepare for it just as she would for a real cross-examination. Review all relevant documents that the witness has created or seen, and review the witness' deposition testimony in detail. Conduct thorough background research too—e.g., the witness's social media presence, reported statements in news media, or prior testimony in other matters. All of this should, of course, be directed toward identifying critical weaknesses in the witness's testimony and credibility. In addition, the attorney conducting the mock cross-examination should review documents prepared by the other side in which they have articulated their theories of the facts and of the case—e.g., pretrial briefs, summary judgment papers, opposing expert reports, and the like. She should also keep abreast of what the witness is expected to testify to on direct as well—that will shape the scope of the mock cross-examination. This process will be time consuming, and should be started as soon as it becomes clear that a witness will be designated to testify at trial.
The end work product should consist of a tight cross-examination outline, and the identification of key documents that are likely to be the subject of the real cross-examination. Crucial statements made by the witness in deposition testimony or elsewhere should be turned directly into questions—e.g. "You 'turned left onto Fairmont Place shortly after the light had turned red,' correct?" Similarly, affirmative statements made by opposing counsel (in pretrial or summary judgment papers, for example) can be turned into questions. Since the ultimate goal is to produce a realistic cross-examination, try to identify any stylistic nuances of the attorney that will conduct the actual cross, and incorporate them into the mock cross.
Expert witnesses require even more preparation, in particular, opposition research into the area of their expertise. Due to the potential volume of these documents, begin preparation as soon as the expert is retained, and in no case start any later than the time at which she is identified as a testifying expert. In addition to the expert's deposition testimony, read and become familiar with both her expert report(s) and with the opposing side's expert report(s).
A caveat to over-reliance upon the deposition of the expert: "Never assume that the pretrial deposition will be the extent of the cross-examination. . . . [M]any experienced trial attorneys intentionally use the pretrial deposition simply as a tool to learn what the expert will say, without arguing or seeking to impeach or cross examine the witness." Rudolf E. Hutz, et al., "ANDA Litigation: Strategies and Tactics for Pharmaceutical Patent Litigators," 381 (Kenneth L. Dorsney et al. eds., 1st ed. 2012).
Additionally, many experts have testified in other matters in the past. To the extent possible, endeavor to obtain copies of any prior testimony that may be used against the expert. However, at times these transcripts are subject to confidentiality agreements or other restrictions, and the expert cannot provide them. Whenever possible, the expert should be questioned about any such past testimony, because opposing counsel may have access to it.. Id. at 380.
The attorney conducting the mock cross-examinations should also familiarize herself with all of the expert reports and deposition testimony of opposition experts, if any, who will be testifying as to the same subject matter. This will allow her to better identify weaknesses in the expert's testimony and opinions. Focus on the key paragraphs and contentions in each. The opposition expert report can be particularly useful as a source of succinct questions on a cross-examination.
FRE 803(18) permits cross-examination of experts on the contents of reliable learned treatises. In order to properly anticipate cross examination, survey the expert's field of expertise in order to determine whether or not there is anything that suggests that her methodology, assumptions, or conclusions were incorrect or contestable. While the expert herself can help in this endeavor, do not rely on her knowledge alone. Similarly, become familiar with the facts or data underlying the expert's opinion, because FRE 705 explicitly permits cross-examination on this subject.
The Mock Cross-Examination
Regardless of whether dealing with an expert or a lay witness, the mock cross-examination itself should usually be quick, sometimes brutal, and surgical. Attack the witness' weakest points right off the bat, in a series of short questions that they cannot disagree with. If an expert has potential weaknesses regarding her level of expertise, look to attack that weakness as a preliminary matter, because that is likely where the real cross will start. As with any good cross-examination, control of the witness is key. Repeatedly chip away at their credibility, use documents and deposition testimony as control, and emphasize their softest points right away.
Keep in mind that most cross-examinations are quick and tight, and so the mock cross-examination should be quick and tight as well. Most effective cross-examinations are conducted in order to establish a limited number of points deemed essential for a party's case. Mock cross-examinations should strive to make those points for the opposition, in the manner in which the opposition is likely to make them.
A good mock cross should ideally cover at least 80-90 percent of the subject matter that is expected to be covered in the real cross-examination, if not the entirety of it. While it is impossible to anticipate every single question that opposing counsel will ask, the witness can still, hopefully, be prepared with a wide enough of a range of questions so that they are not surprised by anything in the real cross. Conversely, do not include questions or weaknesses that the opposing counsel will not exploit. It may not be possible to identify every document that the witness will be shown on cross, but strive to identify and focus on the key documents.
Feedback and Follow-Up
If the mock cross-examination was successful, the witness will not be particularly fond of the cross-examiner. Their confidence may be shaken, and their credibility may have taken a hit. At this point, the team should review the witness' performance, and begin the work of rebuilding what should, ultimately, be a better witness. Begin by identifying the positive aspects of the witness' testimony, before moving on to the negative aspects in detail. The witness' demeanor and general conduct on the stand should be discussed; keep the criticism constructive.
Witnesses tend to suffer from two types of flaws. Some witnesses too easily submit to a strong opposing counsel. After a few attacks have hit home (and sometimes even before), they will begin to agree to everything the opposing counsel says. These witnesses need to be taught how to resist, albeit respectfully. Explain to them when they can say "no." However, it is essential that they be instructed on how to do so without looking like they are stepping into the shoes of an advocate. That is the flaw of the second type of problem witness: the one who doth protest too much. They fight and squirm and refute even the most basic questions. These witnesses are just as bad—they may not give up a significant point, but they lose all credibility in front of the jury. Explain to them that they can agree with opposing counsel without losing the entire case, so long as they do not take the admission further than it needs to go.
The ideal is, as ever, somewhere in the middle. The witness should be honest and endeavor to show that they are smart and honest. They should smile and say "yes" when they must, but should also be made to feel comfortable when they need to say "no."
After this feedback session, conduct follow-up mock cross-examinations as time permits. This will allow the witness to incorporate the lessons she has learned, and to learn to find the right middle-ground between timidity and obstreperousness. She will also become more comfortable with the process overall.
Successive mock crosses can be particularly helpful with witnesses that are extremely nervous or uncomfortable. With witnesses like this, who are essentially afraid of the experience, it can be helpful to give them some wins in order to boost their confidence. Thus, it may make sense to still be aggressive in subsequent mock crosses, but pull back just a bit. The witness will feel like they are doing a better job, and this will give her confidence that may vastly improve her performance at trial. Do not ease up too much, however. If the witness realizes what is happening, it will not have its intended effect.
The content of this article is intended to provide general information and as a guide to the subject matter only. Please contact an Advise & Consult, Inc. expert for advice on your specific circumstances.