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.”

6. Stay calm. Opposing counsel will often try to get you mad enough to say something you’ll wish you hadn’t. Pause. Breathe. The more pressured you feel, the more you should take a deep breath, slow down and think.

 

7. Control the pace. You may get rapid  fire questions in an attempt to get you to stop thinking and answer back just as quickly. Don’t fall for it.  Pause. Take a breath. Think. Take your time.

8.  Take one question at a time. If you hear two or more questions at once, that is called a compound question and your attorney should objec. If he/she misses the objection, don’t take the bait. 

 

For example, if you were asked “Isn’t it true that on the advice of Ms. Smith, you took actions which you knew could harm the company?”

 

There are 3 questions embedded in the 1 question. Answer each one separately as follows:

 

“Well, number 1, I received advice from several people, not just Ms. Smith; number 2, I initiated a number of different actions; number 3, all of my actions were designed to help the company.”

9. Trust your attorney on re-direct. Whatever you’ve not been able to tell or if inaccuracies you blurted out despite your best efforts, your attorney will address after cross examination.

10. Avoid looking at your attorney. Jurors will assume you’re in deep water and sinking rapidly. Either look at opposing counsel, or over at the jurors if you can, but not at your attorney.

 

When I was a prosecutor, if the defendant started to look at his attorney on my cross-examination, I would ask him "Why are you looking at your attorney? What answer does he have to this question." This gets the jury's attention. So when you are answering cross examination, don't fall for the same tactic.

11. Deal with inconsistencies. You will inevitably say something on the stand that is different from what you stated at deposition. Like in the case of trial testimony I mentioned above that was different that the deposition, my opponent pounced on it. We were ready.

“At your deposition, you said abc...., but now you tell us xyz. . Were you lying then or now?”

 

Stay calm. “I’ve had more time to think about it. I have read reports and I have talked to people that jarred my memory. I could not change the substance of my deposition testimony, but what I am telling you now is absolutely certain”

 

An unruffled response will tell the jurors it’s no big deal.

 

 

Well those are some practical thoughts on trial testimony and how it compares to deposition testimony that  I have covered over the last few blog posts. I hope this information is helpful to you.

 

I am going to take a break for a few weeks from discussing  deposition testimony. Instead, I will address some issues on Daubert motions particular to experts in the trucking industry. Don't worry, I will be back to the issue on depositions in a few weeks.

 

If this information has been helpful to you, would you please share these ideas with your friends in the trucking industry. I would like to get more followers to the blog site so that I know I am helping the industry. Feel free to share these ideas by e-mail.

 

Speaking of e-mail, if anyone wants to get a weekly e-mail  of the posts being made here, you can sign up and an e-mail will be sent to you. If the post topic is of interest, you can read it. If not, you can delete it.

 

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