Defusing Anger During Cross Examination
How many times have you observed a well-prepared, even-tempered witness get lured into a defensive posture or a contentious dialogue with a cross-examining attorney?
It can be damaging for a jury to see a witness who has impressed them as reasonable, compassionate, and credible suddenly present as antagonistic, angry, and inconsistent.
It’s the moment when a juror may think, “Hold on, he’s not who I thought he was,” and it can be supremely challenging to reverse that impression.
Among the many qualities that we want our clients to exhibit at trial, consistency is high on the list. And yet the adversarial nature of cross-examination makes this phase of the proceedings a minefield of innuendo, misrepresentation of character, and story-bending. In the hands of a skilled interrogator, it could well inflame and fluster the best of us.
How do you keep your witness out of that arena as he struggles to address the questions that are directed at him in a satisfactory way?
When we prepare clients for trial, we focus early on upon the need to establish an easy and authentic connection with the jury. This involves not only eye contact, but a mindset that invites them into the conversation and includes them in the storytelling of the case.
During direct examination, this may entail moments of teaching, disclosing, or confiding, and because the exchanges are all friendly, it is not that hard to accomplish. Under cross, however, it can be harder to look the jury in the eye as he is being challenged, criticized or shamed.
The witness is often scrambling to process the questions and sort out what needs to be corrected and how; in addition, there may be a rapid-fire pacing that throws him off-balance. And he may mistakenly assume that the jury is hostile toward him as well. Not so! The jury is actually his refuge from the hostility of the questioner.
We counsel witnesses to listen to the question; decide what needs to be “fixed” in the premise or content of that question; unplug from the questioner and calmly redirect gaze, energy, and the corrected version of events to a neutral jury. This can ally the jurors with the defendant whose story was misstated and restore to the defendant an opportunity to tell the truth to listeners who have no agenda.
Be sure that your witness knows to engage with the right parties when defending himself under cross examination: the parties who genuinely want to understand his role in the events of the case!
Gillian Drake
