I don’t cross-examine witnesses. I interrogate them. Let me present you the way. To interrogate a witness in deposition or at trial, you could first perceive the way to cross-examine him. Everybody has their bag of cross-examination guidelines. Listed below are mine:
- Ask main questions. The questions direct the reply.
- Don’t use a tag (“proper,” “appropriate”) on the finish of the query.
- Don’t observe a solution with “OK” or “proper.”
- Make declarative statements within the type of questions.
- Use 15 phrases or fewer. Ideally 10 or fewer.
- Keep away from adverbs and adjectives. Use robust nouns and verbs.
- Use easy phrases.
- Go from common to particular.
- Ask just one reality query.
- Every reality ought to be as small, primary, and bite-sized as doable (ask atom-sized questions, not molecule-sized questions).
- Every query leads from the final query to the subsequent query.
- Exhaust a subject earlier than shifting on to a different matter.
- Exhaust each model of a query.
- If in deposition, ask each query you’ll ask at trial.
- If in deposition, ask the last word questions. If the reply is favorable, you possibly can ask the identical final query at trial.
- By no means argue. If you happen to face resistance, fall again to a extra primary query and hold falling again to questions nobody might fairly argue with.
- Pay attention.
- Keep eye contact.
- Create a quick cadence, quick sufficient to stop the witness from considering, however not too rapidly to make it troublesome for the very fact finder to observe or perceive.
- Delve into the witness’s bias, prejudices, and different points that undermine their credibility.
Counting on these guidelines elicits the solutions you need — truthful, unadorned, simple solutions.
So these are the cross-examination guidelines. They’re mine. You could have your individual. I exploit these as a result of they work. Use what works for you.
The witness, particularly an opposing get together or knowledgeable, has been taught to parry your questions. Sometimes, they’re advised the next:
- Inform the reality.
- Pay attention. Wait. Reply.
- Solely reply in case you perceive the query. If vital, ask the query to be repeated or clarified.
- Gradual the pacing of the query — rely to 2 earlier than answering the query.
- Solely reply the query requested.
- Reply concisely.
- Don’t volunteer.
- One of the best solutions are “sure,” “no,” “I don’t know,” and “I don’t bear in mind.”
- Take into account answering the query by incorporating the query into the reply.
- Don’t guess.
- If requested a couple of doc, learn it first.
- The particular person asking you questions is just not your pal.
- Follow your solutions.
- Take breaks.
Understanding the principles of cross-examination and the way a witness will reply below cross-examination, you at the moment are able to interrogate. Let’s cowl some common interrogation guidelines:
- Study your witness’s persona. Do they are saying an excessive amount of or too little? Are they assertive or passive? Are they assured or afraid? Are they leaders or followers? Are they victims or autonomous? Will they battle each query or agree with you?
- Learn the way they lie. Create a baseline by asking questions which are straightforward to reply, and the responses are truthful. What’s your identify? Your birthday? Your work tackle? The place do you’re employed? How lengthy have you ever labored there? What’s your title? Examine how they reply. Their cadence. Their eye contact. Their facial options. Their physique language. How lengthy does it take them to reply? What are they doing once they reply? Every particular person lies in their very own approach, however once they lie, they all the time lie in the identical method. That you must study as early as doable how a given witness is mendacity to you. In need of mendacity, witnesses, by altering the best way they reply questions, are telegraphing to you that you simply’re near or are placing pay grime together with your questions.
- Get them to neglect the principles they had been taught. You don’t need them to assume or pause. You don’t need them to pay attention and wait. You need them to blurt every part out and neglect all of the prep they sat via. You do that by beginning with innocuous questions rapidly. Don’t waste time writing every part down and slowing the tempo. Pay attention. Take solely a very powerful notes, if any. I’ll study somebody for hours and have fewer than just a few traces on my yellow pad.
- Have a dialog. Sure, you might be asking all of the questions. Sure, that is as removed from an on a regular basis dialog as one can have, however it’s, nonetheless, a dialog. You might be listening to solutions and physique language. You might be taking note of each cue. You aren’t blindly following a top level view. Every query you ask is pushed by the final reply the witness provided. You might be eliciting a confession — admissions that assist your case and damage theirs. It takes time. Endurance. And a complete lot of considering in an actual crew to ask the inquiries to safe the right solutions.
- Go away your ego on the door. You’re not there to impress everybody together with your deposition expertise. I Columbo my approach via my depositions. I costume down. I come throughout as a bit frazzled and distracted. I digress on goal. I supply some details about myself right here and there. I fumble a bit. I lay the entice they shouldn’t fear about me. I do know opposing counsel have advised their shoppers I do that. Their shoppers fall for it each time.
Now that I’ve shared with you my guidelines of cross-examination, how opposing counsel will put together the witness, and the overall guidelines of an interrogation, I’ll proceed to the subsequent step — the principles of interrogation. These guidelines overlay every part I’ve shared with you. That is how you place somebody within the field.
- The interrogation field (whether or not in deposition or trial) is yours. You personal the field. You management every part within the field.
- Have a theme.
- You dictate the tone.
- You dictate the tempo.
- You dictate the cadence.
- You dictate the journey. You resolve the end result.
- You might be respectful.
- You’ve got a well mannered demeanor.
- Begin delicate.
- Pay attention actively.
- Don’t rush.
- Present empathy.
- Decrease the admission you’re in search of. It’s no massive deal, even whether it is.
- First, perceive the witness earlier than committing to an strategy to your model of questioning.
- You safe any and each admission, regardless of how small.
- You safe all related info.
- Use “W” questions — who, what, when, the place, how, and why.
- You construct rapport.
- You collect background info.
- Use silence when applicable after a solution.
- Create alternatives to “confess.”
- Encourage them to say extra.
- The reality is brief. Lies are lengthy. Gauge responses.
- Use paperwork to substantiate or corroborate details.
- Don’t permit the witness to assume. If you happen to suspect the witness is onto you, change to an innocuous topic, wait till they let their guard down, after which revisit the road of questioning that triggered their concern.
Examine and apply these guidelines the subsequent time you study a witness in a deposition or trial. And bear in mind — it’s not merely a cross-examination — it’s an interrogation.
Frank Ramos is a accomplice at Goldberg Segalla in Miami, the place he practices industrial litigation, merchandise, and catastrophic private harm. You possibly can observe him on LinkedIn.
