As a Witness, Know the Difference in Direct Examination v. Cross Examination

The following points distinguish between direct and cross examination testimony.

I am sure that these are not new ideas to attorneys, but for those of you who have never been deposed (or even those of you are are expert witnesses), it doesn't hurt to get some fresh ideas.

Direct Examination

 

1. Understand the purpose of direct examination. Direct examination is your attorney’s opportunity to ask you questions. You will know roughly what these questions are ahead of time. They are considered “soft-ball” questions.

 

2. Allow a conversation. Direct is more  conversational, with your attorney guiding the conversation with questions.

 

3. Expect open-ended questions. Your attorney wants the jurors to get to know you, and open-ended questions make it easy for you to do that.

 

4. Resist the temptation to blurt the whole thing out on the first question. Follow your attorney’s lead, one question at a time.

 

5. Look at the jurors. Look over at the jurors as often as possible during your responses (not during your attorney’s questions), anytime you have more than a word or two to say. Jurors must see your eyes to believe you, but don't be so obvious that you look like a robot turning your head from looking at the attorney and then looking back at the jurors. Just remember to look over at the jurors from time to time. They like regular witnesses better than the attorneys or experts.

 

Cross Examination

1. Understand the purpose of cross examination. Cross examination is opposing counsel’s opportunity to ask you questions. You may or may not know roughly what these questions are ahead of time. They are considered “hard-ball” questions.

2. Follow the question-answer format. Don’t be lulled into treating it like a conversation. The opposing attorney is NOT your friend.

3. Listen with all your might. Think! Opposing counsel seeks to tie you to “yes/no” answers to very precise questions. Think first and use qualifiers as needed to insure the accuracy of your responses. You can say " Yes, but..." The Judge will allow you to explain your answer so don't get rattled if the adverse attorney demands "Just answer the question, YES or NO!" That happens on televisions, but not in real life.

4. READ your deposition and learn from it.  Many of the same question types and style will be used by opposing counsel in cross as were used in deposition. Respond accordingly, but if something needs to be explained then do it.

 

Not long ago, I was getting ready for a trial and it was important that my witness explained some things that he did not in his deposition. The plaintiff's attorney was completely taken off guard by the witnesses detailed explanation of events he could not recall in the previous deposition. Why? Because I prepared him to explain it and why he could not earlier.

5. Remain neutral. Don’t argue with opposing counsel. “That’s not true!!” may be what you want to say, but remember you are not trying to convince he other side. You are trying to convince the jury so saying  “No I did not” is better testimony. “Yeah, but...” isn’t as effective as “In those circumstances, yes.”

Open Your Mouth in Your Deposition: Speak Clearly Please

Alright, I get that most people don't speak in public regularly; however, we ALL talk. When we want someone to understand us, we don't mumble. We speak clearly. Clarity is  essential in giving a deposition.

 

The following are few key points in clarity in a deposition.

 

 

1. Articulate. Speak clearly and distinctly.  This is particularly a problem with Southerners, but I can say that because I am one! I joke and tell folks that anyone can talk like a Red-neck by just keeping your tongue at the bottom of your mouth when you talk. Try it and see if you don't sound like Bubba. It's not a good practice in depositions. Don’t mumble!
 

 

2. Be aware of your volume. Speaking too softly makes it hard for jurors to hear you, speaking too loudly is intimidating.

 

 

3. Use full sentences. In response to “What were your duties?” “Manager” is less accurate than “I managed 2 teams in the IT department.”

 

4.   Use words, not sounds or gestures. Say “yes,” “no,” not “uh-huh” or “nah.” We may talk that like that normally, but the court reporter needs to ensure accurate responses. Shoulder shrugs, head nods, headshaking and other such are impossible to transcribe.

 

5. Know the Sequence of Events. Reviewing the sequence of events chronologically makes it easier to  remember what happened when. I have recently begun to use Casemap as a source of information to keep up organization of materials.

 

6.    Use common words and expressions we’re all familiar with. People don’t “exit from vehicles” they get out of a car.

 

7. Avoid jargon or industry-specific language. The jurors’ education, jobs and world experience may not match yours. Make sure you’re understood by everyone, not just a select few.

 

 

8. Translate technical terms. If your testimony requires you to use technical terms, translate those into“people-speak” as well. Doctors can be the worst with the techincal terms, but I think it's sometimes because they want to sound smart or because they to make the lawyer look foolish. Note to lawyer: look up the words in medical before you take the depostion!

 

 

9. Leave the jokes at home. Humor is a subjective experience, and can easily be misunderstood or even used against you. This is one of the rules I get most annoyed when people break. There will often be unintentional humor in a deposition and that is fine. The intended humor never works.

 

10. Complete your answer. If you’re interrupted, wait until the interruption is over and say “I wasn’t finished with my answer. May I finish it now, please?” (unless the Judge or your attorney asks you not to).

 

 

 

Next week, I will cover some logistical things to remember when giving a deposition. If these ideas have been helpful, please let me know by making a post here or following this blogsite. It is primarily devoted to ideas in defending the trucking industry and I would like your thoughts.

 

 

As always, if there is anything I can do for your day or night, please don't hesitate to call. For more information about the firm, check out our website at www.perkinsfirm.com.

 

 

 

Actively Listen in a Deposition

 When I say this it makes me laugh because I can imagine you're thinking "How do I actively listen?" Do I strain my ears? Do I blow air out of my ears to hear better? How does one actively listen?

 

Well, obviously I mean that you should pay very close attention. Don't just HEAR the words, but listen to what is asked. Pay close attention that you understand the question and answer ONLY the question asked.

 

Here are few more tips on how to pay attention when being deposed.

1. Clear your mind of everything else, and listen carefully to every word of every question asked of you. Legal questions are frequently complex and require your full attention.

 

2. Listen to the question all the way through. Legal questions are often lengthy. If you start formulating your answer in your mind before the end of the question, you may miss the crucial part of the question and answer incorrectly.

3. Take your time. Don’t be in a rush to answer questions. You won’t get out of there faster, if anything, you’ll answer poorly and be testifying longer.

 

4. Pause before speaking. This  gives you time to make sure you fully understand  the question before answering, and to gather your thoughts before you open your mouth.

 

5. Think. Don’t answer on the fly, off the cuff. Everything you say is recorded and matters. Think before speaking. Jurors respect people who think, but when something is clearly easily answered. If you take too much of pause for obvious answers, it becomes obvious that you are trying to deflect.

Appearances Count in Depositions

Before people started wearing jeans and t-shirts to church, we used to tell people to dress for a deposition like they would for church. That may no longer be the best idea, but a witness shouldn't wear a tie if he usually doesn't wear a tie, but he also should not come to a deposition in his greasy work shirt.

 

The following are some good ideas on appearance at a deposition.

 

1. Be neat and clean. No matter your financial means, show up with your hair combed, your shoes shined, your clothes free of stains and your person clean, including fingernails and teeth. It’s a mark of respect.

 

2. Dress appropriately. Business persons generally wear suits; blue-collar workers, a shirt/blouse and pants/skirt; homemakers, PTA-meeting type outfits. Jeans are usually considered too informal for Court.

3. Dress conservatively and simply. Jurors should be interested in what you have to say, not distracted by your fashion statement. Save your wild plaids/florals, stiletto heels, cleavage-exposing, and midriff or backside-baring garments for other occasions.

 

4. Accessorize minimally. Less is more: keep your jewelry and bling to  non-showy minimum. The same goes for make-up, hair styles and nail fashions. Leave your shades in your pocket and hair out of your face; jurors need to see your face and eyes.

 

6. Keep your hands off yourself. Resist the temptation to run your fingers through your hair, pluck at your mustache, twiddle your earrings or pick lint off your clothes.

7. Use the Power-Sit™. Anytime you’re sitting, at deposition or trial, unless your physical condition precludes it, sit with your rear pushed into the “L” formed by the seat and seat-back, then rest your back on the seat back, and leave your arms on the arms of the chair, or

resting loosely in your lap. This will automatically give you good posture and confident bearing.

 

8. Maintain a serious, neutral expression on your face. Avoid extreme expressions, such

as looking wildly distraught, rolling your eyes, scowling fiercely, or flashing broad grins.

 

9. Keep your body language open and undefended. Don’t cross one or both of your arms over your chest, it’s read as defensiveness. Avoid slumping, slouching, twisting your body to

one side, leaning to either side, or supporting your chin with your hand, elbow on the table.

 

10. Engage steady eye contact with whoever’s asking you a question or speaking to you. Look away while you’re thinking if needed, but engage eye contact before speaking.

 

Next week, I will cover a few ideas on actively LISTENING. I often tell my clients that after giving a deposition, they should be mentally and physically tired if they are actively listening.

 

As always, if there is anything I can do for you day or night, please do not hesitate to call. For more information about the firm, you can check out the webpage and www.perkinsfirm.com.

Ten Tips on Deposition Attitude

"Trial" lawyers take more depositions than they direct and cross examine witnesses because most cases settle, particularly when you have done your job in preparation. Lawyers do this all the time, but the witness doesn't,  so we lawyers need to remember that a witness may be very anxious.

I always tell my client, you are not going to convince the other side that you are right and they are wrong. Don't even try. Just tell them what you know. No matter, there are going to be some witnesses who get angry, frustrated, or even hostile.
 

If you haven't seen the "old lawyer fight" video, it's worth watching to remind yourself of what NOT to do. Check it out on YouTube. I prefer not to post here because some of the language, but if you want me to send it to you, send a request to perkins@perkinsfirm.com.


Now, let's talk about attitude. The following are a few ideas on keeping the right attitude in a deposition:

1 Tell the truth. No matter how painful, scary, or awkward it may be, tell the truth. Your attorney can deal with anything, as long as it’s your truth.
 

2 Trust your attorney. Your attorney knows the case better than anyone. Follow his/herguidance, not Court TV’s, your family’s or your best friend’s advice.
 

3 Be sincere. Sincerity wins every time so eave your sarcasm, joking around, ‘whatever’ attitudes, coyness, seductiveness or cuteness at home.
 

4 Be straightforward. Don’t be evasive or beat around the bush. Stick to the facts as you know them as closely as possible.
 

5 Be accurate. Tell it like it is. Resist the temptation to over-state your case, dramatize, or otherwise embellish it.