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If you’re a trial lawyer, you’ve surely heard of Francis Wellman’s classic treatise, “The Art of Cross-Examination.” I managed to get my hands on it and wanted to give it to you for free, so go to to www.TheArtOfCrossExamination.com to read your copy online or download a copy today!
Have you ever found yourself “on the spot,” forced to respond to difficult questions? Regardless of whether the questions came from clients inquiring about their cases, from a senior partner asking about a brief you wrote, or from a judge cross-examining you during a motion hearing, it’s always a frustrating experience when you’re asked difficult questions that you haven’t anticipated and aren’t fully prepared to answer.
It’s even worse when you know that you know the correct answer, but for whatever reason, can’t seem to coax it to the surface from within the dark recesses of your brain. What do you do in those situations, when you need to buy some extra time to gather your thoughts?
If you’re like many lawyers, you probably stumble and stammer your way through a jumble of meanderings and half-processed ideas until you can finally find your train of thought and begin answering intelligently. Unfortunately, the first few moments of your answer are far too precious to waste on disconnected thoughts and random musings. You can’t afford to begin with a bad impression. You need the first words out of your mouth to not only demonstrate your knowledge of the topic, but to also display your command of the situation. How can you do that when you have no idea what to say and desperately need a few extra moments to gather your thoughts?
Luckily for you, there are some simple techniques you can use to buy that extra time you need before responding to a difficult question.
1. Pause (Part 1). Why do so many lawyers feel the need to immediately respond after they’ve been asked a question? Is it a need to demonstrate their command of the situation? Because they’re afraid someone else will jump in and dominate the conversation? Or maybe it’s because silence feels so awkward? Whatever the reason, many lawyers cannot resist the urge to fill the silence with mindless noise. As soon as the question has been asked, they feel obligated to fill the gap with sound. But yielding to that temptation robs you of the opportunity to gather your thoughts and organize your response.
You would be amazed at what your brain can process in the span of a few seconds. If you would allow yourself just two or three seconds to compose yourself and think about what you intend to say, your brain will usually find the correct answer for you. Unfortunately, few speakers are willing to be quiet long enough to let themselves think. How you handle those few moments of silence depends on your level of confidence. For the uncertain speaker, those three seconds can feel like an eternity, especially when a judge or a senior partner is the person who asked the question. For the confident lawyer, however, that same three or four second pause feels completely natural.
To immediately improve your ability to handle difficult questions, strive to become accustomed to silence and comfortable with moments of silence during a conversation. Develop the habit of waiting for a moment or two before responding to questions (regardless of their difficulty), and pausing will soon become second nature to you.
2. Repeat the question. In conjunction with a pause, this technique can buy you plenty of time to formulate your response. Repeating the question is optional when speaking to a single individual, but if you ever find yourself speaking before a large audience, this technique is essential. In a larger room, many audience members won’t hear the question the first time it’s asked. By repeating the question, you’ll not only include the entire audience in the conversation, you’ll also buy yourself precious time to plan your response.
3. Pause (Part 2). Sometimes, you’ll need more than three or four seconds to respond. It’s appropriate to tell the questioner that you’ll be taking more time (“Let me think about that for a moment before I respond”), but you can also remain quiet and think about your response. As we mentioned earlier, most people are uncomfortable with silence. If you maintain eye contact while pausing to collect your thoughts, your questioner will often feel the need to fill the void of silence. When that happens, they’ll usually provide you with more information, such as “I’m asking because…” or “What I’m trying to determine is…” This additional information will often help you tailor your response to the questioner’s actual needs.
4. Ask the questioner to repeat their question. Asking your questioner to repeat the question can be perceived as an obvious delay tactic, so don’t use this technique too often. It’s best to limit your use of this technique to those situations where you honestly don’t hear the entire question.
5. Clarify the question. Presumably, the reason you’re being questioned is because someone wants an answer, not because they enjoy harassing you. If that’s true, there’s nothing wrong with clarifying the scope of their question so that you can provide them with a more relevant response. Asking clarification questions (ex. “When you say, ‘injuries,’ are you referring to all reported on-the-job injuries, or only those that required medical treatment?” or “Define for me what you mean by ‘web presence.’ Are you referring to just our website, or to all of the inbound links and AdWords campaigns we’ve created?”) not only gives you more time to think, it also allows you to present a more targeted and valuable answer.
As a lawyer, you’re probably going to find yourself answering lots of difficult questions throughout your career. Apply these techniques and you’ll not only appear more confident and more authoritative, but your responses will become better organized and more persuasive.
How many notes do you use during trial?
It’s a delicate balancing act. Too few notes, and you run the risk of forgetting to address an important element of your case. Too many notes, and you risk sounding scripted.
Here are a couple of quick tips for improving your use of notes during trial.
When Speaking Directly to the Jury
The importance of eye contact in the courtroom can’t be overstated. The visible (sometimes barely visible) reactions of your jurors can help you decide whether or not to pursue an argument, whether to follow up on a line of questioning, and whether you need to return to a line of questioning to clear up potential misunderstandings. You’ll need to pick up on the small non-verbal clues that they’re sending you, and you can’t do that if your head is buried in your notes. Are they telling you to speed up? To slow down? Are they confused? Bored? Do they need part of the testimony repeated? If you don’t look at them and read those clues, you’ll never know.
Make sure that you’re making eye contact with who you want to persuade. Since you’re trying to persuade the jurors, rather than your legal pad, try to minimize how much time you spend looking at your notes.
When Speaking to a Witness
Jurors take their clues from you about how they should treat witnesses. If you act like a witness is important, jurors are more likely to think the witness is important. If you act as if the witness’s testimony doesn’t matter, they’re more likely to dismiss what he says, regardless of its actual importance.
When you look at your notes instead of making eye contact with the witness, it’s not only rude, it sends a message that you don’t care what he has to say and that his answers don’t matter. To avoid sending the wrong message to your jury, look up from your notes and make eye contact with the witness before asking your question, and finish listening to his answer before you look down at your notes for your next question. You can even hold eye contact with the witness for an additional moment after he finishes answering, to show that you’re paying close attention to what he’s saying and encourage the jury to pay more attention, too. Just don’t stare at him, because it will make him feel uncomfortable and he’ll look uneasy on the stand.
Minimizing Your Notes
It’s okay to write out your arguments or questions word-for-word when you’re preparing for trial, so that you know what you want to accomplish. But don’t make the mistake of bringing those scripts up to the lectern. Those notes will become a mental crutch, and your eyes will never leave the page.
Anyone can read from a script. With a well-scripted direct or cross-examination, you could pick someone off the street, send him into court with the script, and let him conduct the examination. He’d do fine, right up until the point when one of the witness’s answers went off-script. Then he’d be completely lost, and would have no idea what to do next.
Unlike trials on TV or in the movies, real trials don’t stick to a script. Trial lawyers who depend on scripted examinations don’t always react very well when the unexpected happens. That’s why, the fewer notes you bring to the lectern, the more freedom you enjoy.
When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need. Rather than full sentences, use brief phrases or single words. Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?” All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.
Make it Easy on the Eyes
Finally, if you want to minimize your time spent looking at the page and maximize your eye contact with the jury, it will help if your notes are easy to read. To reduce how much time you need to look at the page, don’t rely on your chicken scratch handwriting. Instead, type up your notes (preferably in 18pt or 24pt type) with a simple sans serif font. You’ll be able to glance down at your notes for an instant, absorb the idea, and then immediately return to making eye contact with your jurors or your witness. With a little practice and preparation, the jurors won’t even notice your use of notes, they’ll just focus on the strength of your case!
With language, it’s not just the words you use, but the order they’re placed in. By changing the syntax, you can radically alter the meaning of a phrase. For example, look at these two phrases:
#1: You are not as pretty as she is.
#2: She is not as pretty as you are.
Same words, different meanings. Both phrases contain exactly the same words, but only one gets you slapped across the face. Obviously, syntax can be powerful, so in this tip, you’ll learn how to harness its power to improve your cross-examinations.
By changing the structure of your questions, you’ll shift the jury’s focus towards the most important point that you need them to remember. For example, let’s say you’re cross-examining a witness in a case where a child gains access to a handgun and injures another child. One of the important facts in your case is that the witness kept a loaded handgun in the bottom drawer of his nightstand.
Depending on which fact you think matters most, you’ll want to rearrange your question to emphasize that fact. What you’re going to do is put your most important point at the end of the statement. Here are a two different ways to ask the same question:
1. Emphasizing that the gun was located in the bottom drawer, which would be easier for the child to access:
“In your nightstand, you kept a loaded gun in the bottom drawer?”
2. Emphasizing that he kept the gun loaded:
“Inside the bottom drawer of your nightstand, you kept a loaded gun?”
Rearranging your questions to place the most important fact at the end will give you two benefits. First, it gives the witness less time to think. That forces him to either respond immediately (possibly blundering his response) or squirm silently for a moment while formulating his response. Sure, it’s only an extra moment or two, but when a witness gets hit with a tough question during cross-examination and then pauses to form his response, that time can feel like “dead air” on the radio. A few extra moments like that during critical moments in your cross-examination can leave the jurors with the impression that this witness isn’t someone they should fully trust.
The second benefit of rearranging your question is that you’ll place greater emphasis on the important facts you want the jury to remember. When we get to the focus of the sentence, we tend to stop listening. Put your most important point at the end of your sentence, and then stop.
How many times did you testify during your last trial?
According to the Federal Rules of Evidence definition of “testimony”, your official answer should be zero. Unless something bizarre and unexpected arose, you probably didn’t find yourself raising your right hand, swearing or affirming to tell the truth, sitting in the witness box, and then telling “the truth, the whole truth, and nothing but the truth.”
But that doesn’t mean you didn’t testify. In fact, you probably testified more than anyone else in your case, because each time you arose from your seat and spoke to the jury, you were “testifying” and giving the jurors a chance to assess your credibility and your belief in the case.
So, with that new definition in mind, how many times did you testify during your last trial?
If you’re like many lawyers, your answer is probably “twice”: Once during opening statement, and again during closing argument.
But think again. When you stood before the potential jurors during jury selection, you were testifying there, too. In fact, that was the first time they got a chance to see you and evaluate how you felt about the case, so it might have been one of the most important times you “testified.” So, the correct answer is 3 times, right?
Not quite. If you did a good job of trying your case, the correct answer should be that you testified four times during your last trial. The fourth time that you testified, and the time that most lawyers forget about, is during cross-examination. (Why isn’t the correct answer five times, once for each portion of the trial? Because hopefully the jury was so attuned to what your witness said during direct examination that they didn’t even notice you were there.)
The great thing about cross-examination is that it allows you to testify during your opponent’s case. Although many lawyers think that the person in the witness stand is the one testifying during cross-examination, that’s not true. If you’re doing it correctly, it should be you “testifying” to each factual statement, while the witness merely nods his head in agreement with what you’ve said.
The reason you get to testify during cross-examination is because you’re allowed to ask leading questions. The leading question is the only tool that the Rules of Evidence provide you for controlling the witness and discovering the truth.
Unfortunately, many of us don’t wield that tool as effectively as we could.
If you were prepping an important witness for trial, you’d help them to ensure they testified powerfully and persuasively, right? Well, it’s just as important to maximize the effectiveness of your testimony during cross-examination. One of the easiest ways to improve your testimony during cross is to eliminate any surplusage in your questions. These irrelevant words and phrases can dilute the power of your cross-examinations, create confusion, or give the witness an opportunity to wiggle out from under your control. If you’ll make an effort to reduce their use, your testimony will become more persuasive. Here are three examples of surplusage, and tips for eliminating them from your testimony:
Surplusage #1: Adverbs
Adverbs dilute the power of your cross because they provide the witness opportunities to disagree with your questions. For example, if you tell the witness, “You walked south on Elm St., away from the crash scene,” there’s not much room for disagreement. He either did, or he didn’t. But, if you add an adverb to the statement (“You quickly walked south on Elm St., away from the crash scene,”) the witness gets a chance to fight you, because now the question asks for a subjective interpretation, rather than asking for strictly objective information.
Read through your list of cross-examination questions and look for any words ending in “-ly.” When you find them, strike them from the page. By eliminating these quibble words, you’ll make it more difficult for the witness to disagree with you.
Surplusage #2: Perceptions
Many lawyers will ask the witness what they perceived, rather than what happened. Here’s an example:
“You saw the tall man pull out a handgun?”
“You saw him point the gun at the shorter man?”
“You didn’t see anything in the shorter man’s hands?”
“You saw him pull the trigger?”
“You heard a single gunshot?”
“You saw the shorter man fall to the ground?”
The most important part of those questions isn’t what this witness saw, it’s what the tall man did. Strengthen the imagery in your testimony by focusing on the events, rather than the witness’s perception of the events. Instead of asking how the witness observed the event (“You saw Johnny walk into the bedroom?”), remove the “you saw” elements from your questions and go directly to the facts: “Johnny walked into the bedroom.”
Notice how much removing the surplusage makes it easier to follow the story:
“The tall man pulled out a handgun?”
“He pointed the gun at the shorter man?”
“The shorter man didn’t have anything in his hands?”
“He pulled the trigger?”
“A single gunshot rang out?”
“The shorter man fell to the ground?”
Surplusage #3: Taglines
Taglines can be an effective tool for helping you ask leading questions:
“You own 30,000,000 shares of SuperMegaCompany stock, correct?”
“Your best friend is the president of that company, isn’t that true?”
“He told you to sell all of your shares on October 2nd, right?”
“You sold every share you owned, didn’t you?”
“The company declared bankruptcy three days later, didn’t they?”
Used occasionally, taglines can add dramatic impact to your most important questions. However, used to excess, these taglines can distract from your cross-examination, especially if you repeat the same tagline over and over. (“Correct?” “Correct?” “Correct?” You’ll sound like a broken recording!) By eliminating taglines, you can streamline your cross-examination into a series of back-to-back factual statements that tell a persuasive story, punctuated only by the witness’s “Yes” response to each statement:
“You own 30,000,000 shares of SuperMegaCompany stock?”
“Your best friend is the president of that company?”
“He told you to sell all of your shares on October 2nd?”
“You sold every share you owned.”
“The company declared bankruptcy three days later.”
If you practice before one of those judges who refuses to believe that voice inflection alone is insufficient to turn a statement into a question, you may feel forced to add taglines to all of your questions. However, if you find yourself in that predicament, try using taglines on the first few questions, and then dropping them. Having set the tone with your first few questions, the witness will be trained to say “Yes” to your statements, and no one will notice that you’ve dropped the taglines:
“You own 30,000,000 shares of SuperMegaCompany stock, correct?”
“Your best friend is the president of that company, isn’t that true?”
“He told you to sell all of your shares on October 2nd, right?”
“You sold every share you owned.”
“The company declared bankruptcy three days later.”
You probably can’t eliminate all surplusage from your questions (nor should you try), but once you’re aware of how it detracts from the strength of your testimony, you’ll want to make efforts to reduce it. Invest the effort to properly prep yourself for trial, and your “testimony” may make the difference between winning or losing the case!
