Who’s in Charge Here?
In high-stakes civil litigation, there’s a world of difference between a deposition and a trial. Depositions are a preview, a testing ground; but the trial is the main event. On the witness stand, there are no ‘do-overs’ and no room for error.
If a lawyer’s examination is flailing or directionless, it’s painful to watch (and even more painful for the examining attorney). Sometimes, a nervous or poorly performing witness will take some of the focus off the floundering attorney. But either way, the result is often that the examination is dull, confusing or hard for the jury to follow. Instead of establishing key points, the lawyer may just hopelessly muddle his case and confuse the jury.
When the witness is composed and holding her own, however, that makes the poorly performing lawyer look even worse. Witnesses who testify regularly (like experts or police officers) and those used to performing in front of crowds (like celebrities) are often great communicators on the stand. If they succeed in making the cross-examining attorney look foolish or unprepared, that exchange might be the thing that sticks out most in the jurors’ minds as they retire to the deliberation room.
The recent civil trial of rapper Cardi B on allegations of assault was a textbook example of a witness taking control of the examination away from the attorney. The attorney’s questions were often irrelevant and exposed a fundamental misunderstanding about the witness, including when he asked her about her changing hairstyles and she had to explain to him that she wears wigs. At other times, the attorney asked plainly objectionable questions repeatedly, which appeared to irritate the judge, and did not provide any benefit to the plaintiff’s case. The questioning also opened up opportunities for Cardi B to make the exchange—and thus the attorney’s entire line of inquiry—seem silly, like when the attorney asked her how she knew that his client (who alleged Cardi B assaulted her) was bigger than the rapper. Cardi B’s incredulous response, which elicited laughter from the courtroom, was to gesture at her eyes and explain that she was able to look at the plaintiff. The lawyer’s lack of preparation made him look foolish and handed control to the witness. No client wants to be sitting in a courtroom realizing their lawyer isn’t ready for trial.
Three Key Rules of Skilled Cross-Examination
First, good lawyers stay away from irrelevant lines of questioning. Irrelevant questions show disrespect for the jurors’ time and will quickly lose their attention. Additionally, an irrelevant line of questioning, even about something as harmless as hairstyles, can lead to unexpected answers, which can derail an attorney’s prepared line of questioning. Great trial lawyers don’t stick mechanically to a script, but they don’t wander too far away from the plot, either.
Second, great trial lawyers don’t ask questions at trial that they don’t know the answer to. Depositions and document review are where you do your investigation, not the courtroom. At Keller Anderle Scolnick, we use discovery to eliminate surprises at trial. We don’t ask a question we don’t already know the answer to. That’s how we maintain control and avoid costly, unexpected answers. The reason for this rule is obvious, but it bears stating anyway: the jurors will know instantly when an attorney gets an unexpected answer and they will likely assume it has great significance (even if it doesn’t).
Third, expert trial lawyers have already thought through how the witness is likely to react to questioning. Part of taking depositions is to learn about the witnesses’ presentation and mannerisms. Are they confident and well-spoken? Shy and nervous? Do they seem cagey, or in control of the facts? Our courtroom experience teaches us to read a witness before they even take the stand. We craft our examinations based on who the witness is, not some mechanically generated list of standard questions.
With that kind of preparation, you will not expect to see this type of exchange with a confident and quick-witted witness:
Plaintiff’s Attorney: How do you know she wants your money?
Cardi B: Because she’s suing me for $24 million
The Right Team Makes All the Difference
Our attorneys apply definitive rules to the art and science of cross-examination. The stakes are too high for a “do-over.” In the courtroom, preparation and discipline make the difference between winning and losing. Our firm has a track record of winning difficult cases for our clients. When your freedom, business, or reputation is on the line, you need a trial team that’s ready for anything.
Bring us your toughest case. We’ll get the job done.