Anyone can teach a witness how to hold the line on cross examination, but can you go farther and actually teach your witness to come out ahead while being cross examined? Here are the techniques that we recommend for teaching your witness to take advantage of opposing counsel’s cross-examination:
Wait For Your Pitch
The first lesson is to teach your witness when to make a move against the examiner. Overall, teach your witness to be well-behaved, calm and likeable throughout the cross-examination, rather than overtly combative. Your witness can be taught to wait for appropriate moments to disagree with the examiner, like a poker player folding bad hands or a batter waiting for the right pitch. The witness can be taught the difficult areas on which the examiner will be expected to make an attack which will be the moments for the witness to act.
Counter-Strategy: Insert Favorable Case Themes
The second lesson is to teach your witness the favorable thematic narrative material to insert into the answers. Together you can consider what thematic messages would be your favorable version of the examiner’s expected attack issues. These themes should tie into the case themes that have been in the opening and will be in the closing. In doing this, you are teaching your witness to extend your favorable story line through the cross examination.
How To Insert Themes: Answer The Question Last
The third lesson is to teach your witness how to get this thematic material into the answers without appearing combative or difficult. To do this, your witness can be taught to answer the Yes or No part of the question at the end of the response instead of at the beginning, as in “We had many meetings to decide about that, so yes.” This limits the ability of the examiner to cut off the response before hearing the thematic content.
Gain Strength: Build Your Witness’ Confidence Live
Last, teach your witness how the examiner tends to behave when faced with an unfavorable response in order to cue your witness throughout the cross examination when the witness is being most effective. This information can be gleaned from watching the attorney on other cross examinations on the current trial or from reading transcripts of previous trials. Many cross examiners unintentionally signal when they have gotten a bad response by, for example, quickly shifting topics or by trying to signal the jury otherwise by saying “thank you.” Teaching your witness these signs of the witness’ success can help the witness gain more confidence as the cross examination continues instead of getting more worn down by the process.
Build Up Meek Witnesses
Because these techniques are not overtly aggressive, they can be successfully taught to even the most timid witness. In fact, the more timid witnesses can gain the most strength from the last technique to build confidence while the cross examination is going on.