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Counterpunch: Ten Ways to Fight Back on Cross, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog


A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, ‘Well, at least I got to tell my side in direct,’ or, ‘My own attorney will give me a chance to fix all of this in redirect.’ Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility.

The way I’ve explained it before is that cross-examination is, for the witness, a polite struggle. ‘Polite’ because the witness can’t afford to come off as too combative or uncooperative — ‘I’m just here to tell the truth…’ should be the tone. But ‘struggle,’ because there is a skilled advocate at the lectern whose job is to, at least for the moment, support his story and not yours. A good witness needs to work against that purpose. Like any advice, the message to fight back’ can be taken too far, or not far enough. It is a matter of balance and practice, and it clearly helps to get feedback during a prep session or two to make sure the communication is assertive but not aggressive. With these considerations in mind, here are ten ways witnesses can maintain their own power while being cross-examined. . . .