Making ready the shopper for the reckless cross-examination
My father would say, “Don’t let your lack of preparation be the opposition’s greatest weapon.”
In front of the federal court building, a cloud of smoke billows from under the creamy fedora. The lawyer next to me leans forward: “Your father is a legend here. One of the last great general practitioners – brought over 350 cases to the jury! His old colleague goes on to comment on how “Joe” might dissect doctors, divorces, cops, and forensic experts with cunning expertise. With such a father, it was easy to assume that any cross-examination would be ruthless.
Despite the outwardly charming presence, the opposing attorney’s job is to unravel the credibility of your client’s story. They can unravel the details by strategically using a carefully constructed question at a time, or by hammering sharp, biting staccato questions, “Isn’t it true?” In either case, the client needs to be prepared for a variety of tactics.
Some practitioners believe that the way to cross-support expected problems is to sit down with the client, review previous statements, pile up records, and separate “good” facts from “bad” ones. Unfortunately, the deluge of factual information can easily get mixed up for a customer. They are worried, confused, and concerned about what the lawyer should remind them of, what they think are important, and what details might come out sideways. In preparing witnesses for the trial in my own cases or as advisors, clients always say the same thing, “I’m afraid I’ll say something that will hurt the case.”
Packing a witness full of “do’s” and “don’ts” only adds to that concern. Lawyers cannot prepare clients for testimony as if it is time for class 11 and hope that all goes well. Hope is not a strategy. Instead, the following offers some practical tips to help prepare for the reckless cross:
- Start Early – Effective preparation means starting weeks or months in advance. Customers often have emotional blocks that make them vulnerable or, if not used, can explode during an aggressive flank. Defensiveness and anger are common (if understandable) responses, but both make customers appear like they are trying to hide something. Since questions of credibility are asked in many cases, this is an enormous risk to the case. It takes time and practice to learn how to unpack the client, manage their emotional and psychological state, and give them tools to navigate their testimony. Waiting until the last minute is a disservice to the client and the case and effectively becomes the greatest weapon in the opposition’s arsenal.
- WELCOME TO THE OTHER SIDE – Prepare the client for the expected attacks. This is where most lawyers push back: “Well, how can we possibly know what the other side is going to ask?” “Just,” I say, “plan for everything.” Take the time to get to the heart of the objection case. Every lawyer starts to say, “Let me tell you about my case.” No! Tell me about the other side. “What do you say exactly?” How can we simplify this so that the customer understands what they are saying? Once the client gets the narrative, the other side tries to construct the facts they find comfortable, when they set a limit, when a ruthless lawyer begins to take liberties.
- YOUR OWN IT – Remember what it means to “pull the trick”. If the client has committed a crime or has been using drugs, it is best to prepare for it as if the information was going to court. Help the client understand that there is no need to resist or argue. If it’s true then own it. Otherwise they look defensive. In the end, they explain a lot and any good litigator will tell you – you lose every time you explain.
Elderly woman with folded hands in her lap; Image by Cristian Newman via Unsplash.com.
In a recent trial, the defense carefully mapped out each location my client signed a “release from liability”. Every time the customer looked at the signature, he confirmed that she had signed it. The lawyer wanted to give a more meaningful testimony, such as, “Well, I didn’t read that!” or “I didn’t get it,” etc., but he still seemed pleased with his one-sided performance as she continued to acknowledge her signature. Until the diversion when I asked, “Ma’am, remember a few minutes ago you asked for an explanation and Mr. Defense’s attorney said it was not necessary.” Please tell us what you wanted to clarify ”. In her sweetest grandma voice, she says, “Well, I’m not a lawyer, but this publication says nothing about your being allowed to commit fraud.” The client owned her actions and, ultimately, the fact that it could lead to her possible contributory negligence, but possession of her mistakes provided a high level of credibility.
- RELEASE YOU OF PERFECTION – Agree with the client that they will get a few things wrong and some things they may say could potentially hurt the case. But assure them that most of these don’t matter (like dates or measurements) and you can do the rest. Let them know that there are good ways to deal with bad facts, and it is not their job to treat every answer like it is Bruce Lee. When faced with a record showing contradiction, let them know that it is okay to politely contradict the document and simply say, “I remember differently” or even, “I think I’m wrong me”. They do not gain points for entering a verbal judo match and splitting hair to “fit” their response when there is evidence contradicting their memory.
- SURPRISE THE SKIRMISH – Help the client understand a testimony is unfolding. You don’t have to “win” every answer. You don’t have to tell your whole story at once either. If they’re patient and don’t get argumentative, there are good ways to deal with bad facts. In the example above, my client knew I would give her the opportunity to raise the forward fraud. She knew and understood the process, order, and timing of the testimony, and although the defender believed he was going to score a couple of “wins,” they ultimately collapsed because she kept her calm, gave him what he was looking for, and in the end knew I was going to give her the chance to give “the rest of the story”.
- WORKING WITH PICTURES – Most people store memories as pictures and images in their heads. Helping the witness get pictures is tremendously helpful and convincing, and will make them testify more consistently. It takes practice for the Witness to develop the habit of recalling images, but it is an important skill to survive a strong cross.
My father would say, “Don’t let your lack of preparation be the opposition’s greatest weapon.” These preparation and practice tips can be the key to getting the customer prepared and feeling ready for action like the tried and tested “seaworthy” ship.