The prior inconsistent statement.  Most cross-examiners love prior inconsistent statements.  If you were to create a “top ten” list of methods for impeaching witnesses, prior inconsistent statements would rank near the top.  If you’ve ever caught a witness in a genuine inconsistency (”Today you testified that the light was green, but in your deposition, you testified the light was red…”), you understand how effective the impeachment can be.  But be careful.

Not all prior inconsistent statements are created equal.

Unfortunately, many trial lawyers don’t understand that.  They treat every prior inconsistent statement as if the witness was admitting to perjury.  You’ve seen these lawyers in court, screaming “Were you lying then, or are you lying now?!?” while attacking the witness for a trivial inconsistency.

But not you.  You know better.  You recognize which inconsistencies are major and need to be highlighted or paraded before the jury.  You recognize that other inconsistencies are minor, and know that it may be sufficient to mention them once before letting the issue go.  You also recognize that some inconsistencies are trifling or inconsequential, and you know to ignore them.  As a master cross-examiner, you need to recognize the difference, and know how to react.  To help, here are some important questions to ask yourself before you leap on the prior inconsistent statement:

Question #1: “Is the witness doing his best to be honest?”

Just because the witness makes a mistake, it doesn’t mean he’s lying to you.  In fact, many jurors believe that if a witness doesn’t make any mistakes while testifying, his testimony might be too good to be true.  Every witness will make some mistakes while testifying.  Most of the mistakes are probably attributable to nervousness.  Jurors understand that.  They know that the courtroom is an intimidating place, because they felt nervous, too, when you questioned them during jury selection.  If the witness is mistaken, rather than lying, you may not want to press too hard on the inconsistency.

Question #2: “Is the inconsistency central to my case, or is it a tangential issue?”

You probably know all the tricks about setting traps that force witnesses to admit to trifling inconsistencies, but should you use them?  When you harp on tangential inconsistencies, the jurors may think that you’re nitpicking.  Jurors may think that you’re over dramatizing the trivial inconsistencies because you don’t have a real case.  After all, if you had a real case, you would focus on that, rather than the trivial tangential issues.  If the inconsistency isn’t central to your case, it may not be worth mentioning.  (Of course, sometimes a tangential inconsistency can become a central issue in the case.  See also: the “N” word, O.J. Simpson trial, and Mark Fuhrman)

Question #3: “Is it a true inconsistency?”

During direct examination, the witness testified that he arrived home at “5 o’clock.”  However, he told the police officer he arrived home at “4:58 PM.”  Is that a true inconsistency?  Use your common sense when evaluating the strength of inconsistent statements.

Question #4: “Is it a minor inconsistency — or is it just the tip of the iceberg?”

Don’t automatically disregard minor inconsistencies.  It may not be a minor inconsistency — it may be the tip of the iceberg.  You’ll need to use your 6th sense to determine which it is.  If you think the inconsistency is just the tip of the iceberg, you’ll probably appear to be “nitpicking” for awhile before you strike gold.  Keep an eye on your jury while you progress, so you can constantly re-evaluate how you’re doing and determine if you should continue to press forward.

Prior inconsistent statements can be a devastating form of cross-examination, but that doesn’t mean you should harp on every inconsistency.  Understanding the difference between important inconsistencies and trivial inconsistencies will set you apart from the other lawyers in your courthouse.  Evaluate each inconsistency by asking these four questions, and your next cross-examination will be a success.

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.