June 4, 2024
We recently wrote about being a witness, a companion piece to an earlier article about the seriousness of affidavits.
In both situations, the evidence, and the witness, are subject to cross-examination.
“Cross-examination” is examination of a witness by the opposing party, either in court, or sometimes before the court date, if it is cross-examination on an affidavit. It is frequently considered the most difficult, but greatest, feat of advocacy. Do a good job cross-examining the opposing witnesses, and your closing argument becomes simple.
For this reason, it is best attempted by lawyers, and is a particularly challenging concept for self-represented litigants. Though the trial judge will guide the “self-rep” as to procedure, they will not intervene to the point where they are conducting the cross-examination – doing so is the job of an advocate, and judges who “descend into the arena” are routinely criticized.
Cross-examination is often used to “test the evidence” to attack the credibility or reliability of a witness. But it can also be used more broadly to help paint the picture that the cross-examining lawyer wishes to portray, or more frequently, to obtain admissions of fact helpful to the cross-examiner’s case.
A good cross-examination is planned in advance, drawing upon your earlier evidence; the evidence of other witnesses; and relevant documents. It may look easy, but that is just a combination of experience and effort.
If you are going to be a witness, the lawyer calling you will, time permitting, review the basic rules of the limits of proper examination with you. They will ask that you review your affidavit, if there is one, or a transcript of your examination for discovery if you were a discovery witness. They will show you key documents which they expect the cross-examination to focus on. If the matter is big enough, or your evidence is crucial, they may conduct a “dry run” of mock cross-examination to increase your comfort level.
You do not need to worry too much about an unfair cross-examination, as the lawyer who called you may object to questions which are vague or otherwise unfair (such as “have you stopped beating your wife?”). We never want to object too often, as that sends a message that we lack confidence in our own witness, so thorough preparation is necessary. Know your story and stick to it. If you are telling the truth, you have nothing to fear in being cross-examined.
At Weilers LLP, we take the practice of law seriously; we take each case seriously; we take a witness’s credibility seriously. As much as we like to have fun, and be comfortable to deal with, we are serious lawyers.