Another look at how to treat the witness in cross-examination

Why confrontation should be firm, but never vicious

2010 April

Dr. Nelson’s article on cross-examination deserves to be highlighted and underlined by me at every turn. However, there is one aspect to cross examination that needs to be emphasized in this litigation consultant’s opinion: how you treat the witness whom you are cross-examining. Dr. Nelson says: “Your basic attitude toward all witnesses – including experts – should initially be one of respect and politeness.” Easy for me to underline and highlight. Easy for Dr. Nelson to advise. Not so easy for you to do. Why? Because you hate them.

You aren’t crazy about the lawyers who represent them, but your attitude toward those lawyers ranges from “honest lawyer who just does a job” to “scum of the earth who must not be able to sleep at night.” You rarely give a witness that kind of a break. Face it, you have hated these people since you got this case. In the case of the defendant, you loathe that negligent doctor, that careless driver, that manipulative employer. In the case of the percipient witness, you question the underhanded motives of the relative, friend, colleague of the defendant. But there is a special place in your view of hell for the expert witness – those inept, idiotic prostitutes who you have detested since either reading their names or reading their reports.

Beware of backfiring

Dr. Nelson is right about how this backfires on you, of course. Jurors relate more to witnesses than to attorneys. And although there is some leeway with experts, there is often never as much room as your snarling vicious attack dog attitude warrants. When Dr. Nelson says, “Confrontation should be firm, not vicious,” she means you.

I hear over and over again from attorneys, “But jurors expect me to draw a little blood in cross-examination. They like the show.”

Actually, they don’t. They like facts. They like evidence. They don’t like to watch you beat the living daylights out of, for example, a marine biologist. Or an economist. Or pretty much anyone who you think you have the right to verbally and emotionally punch out on the witness stand. If you are honest with yourself, you will admit that you aren’t doing it for the jurors – you are doing it because it feels good. Because it gives you some kind of satisfaction in the pit of your trial lawyer gut.

When I coach attorneys on their demeanor during cross-examination I often harken back to the theater. Why? Because actors have the same problem. My husband, Alan Blumenfeld, was working with Jerry Zaks, a brilliant Broadway director, on Neil Simon’s Laughter On The 23rd Floor. They were rehearsing and in previews out of town before bringing the show to New York. Jerry said to Alan, “Remember when you looked at him, and bellowed that line and then looked up at the ceiling, and it felt really, really, good?”

Alan remembered, the tantalizing feeling recreated for him, and said, “Yeah.”

Jerry said, “DON’T EVER DO THAT AGAIN.”

So, gentle reader, I say to you, “DON’T EVER DO THAT AGAIN.”

The secret weapon

How do you develop alternate skills other than skewering and lambasting people in cross-examination? Practice being nice. Start by not acting like a total jerk in deposition. Be nice instead. Not just because it gets you further with the witness – it does – but because this is a skill you need to practice for cross-examining this witness in trial. Look in the eyes of the witness you are questioning in deposition and smile. Let your voice be warm and welcoming. Let your inflections rise. “Pin down” with facts, not with your overbearing anger. But don’t stop there! Practice being nice to your family. Are you married to someone who says from time to time, “For God’s sake, stop cross-examining me”? Take it to heart and stop! Practice being nice to telephone sales people. You know how good it feels to come up with some really clever way of putting them down? Don’t. Say, “Gosh, I am not interested but I sure as heck hope you find someone today who is. Good luck!” Why? So you can be nice in cross-examination. You, your cross-examination style, and your clients will benefit.