Prepping Your Client for Cross-Examination

Reprinted with permission from CEB.

September 1, 2021

Most cases are won by witnesses and evidence, not by attorneys. Preparing your client to tell their own story effectively is an important aspect of trial and can make your case.

Preparation of your client for cross-examination should include doing each of the following:

• Set a few facts in their mind. Isolate a few important facts in the case and drive them home by repetition. Don’t force-feed detailed narratives to your client because it’s more likely that they will freeze up on the stand or sound rehearsed.
• Emphasize honesty. Encourage your client to be honest. A jury will almost always forgive a witness who has erred in the past and who gives answers that are inconsistent with their litigation claims, as long as the witness admits error on the stand.
• Minimize stage fright. Remind your client that there’s the safety net of re-direct, so they don’t need to get the testimony letter perfect during cross-examination, nor is there a need to make speeches or volunteer information to fill gaps. Explain that you’ll do any necessary repair work during re-direct.
• Increase credibility. Advise your client to use the following credibility boosters:
  • Use confident body language—lean forward, make eye contact, use hands for illustration, and keep the head up.
  • Dress neatly (but not out of character).
  • Use a “power” vocabulary: no hesitation words (“you know,” “actually”); use meaningful qualifiers (“very,” “most,” “least”), and short answers.
  • Don’t give rambling, evasive answers. Few answers are as powerful as a simple “Yes” or “No.”
  • Don’t show hostility or sarcasm to opposing counsel.
  • Don’t make closing arguments during cross-examination. If speeches are necessary, counsel will give them in closing or on re-direct.
  • Don’t stake credibility on some unimportant side issue. Stick to an assertion in the face of strong contradictory evidence only if that assertion is critical to the case.
• Prepare for tricks and traps. Tell your client that cross-examiners have many tricks in their repertoires to score a point off a witness, and help your client to spot and handle them.

Also use these points when you’re preparing other friendly witnesses for their cross-examination. Being well-prepared will help your witnesses stay calm and be most effective as they withstand cross-examination.

For much more on preparing your client and other favorable witnesses for cross-examination, turn to CEB’s Effective Direct and Cross-Examination, chapter 6.