One of the key points in every trial is cross examination. This is when the witness must face the opposing attorney’s onslaught of challenging, leading questions. Picture any trial scene on television or in a movie and it probably features a cross examination. Remember that famous line, “You can’t handle the truth,” from A Few Good Men? Yep, the cross examine is the ultimate pressure cooker from which people either emerge as diamonds or dust. When it’s time for the lawyer and witness to face-off, jurors move to the edge of their seats to watch the show.
A witness’s failure to successfully navigate a cross examination can:
- Undercut witness credibility.
- Diminish the value of the direct examination testimony.
- Kill a case.
Cross examination preparation is pivotal. For your client, the cross exam is what they fear most; a trained lawyer with open season to grill them, possibly leading to public humiliation regarding their injuries, their choices, and their life.
The best method I have found to prepare a client for cross examination is intense, recurring role play. Basically, creating the pressure scenario before they ever take the stand. One essential step in the role play is designing the extreme pressure into the client preparation experience.
How do you simulate the extreme pressure of the witness stand?
- Craft cross examination questions from opposing counsel’s point of view.
- Pick topics that are challenging.
- Ask colleagues to step in and role play with the client.
- Break up the role play into eight to ten minute increments.
- Do multiple role play sessions on different days.
In a recent trial preparation, I designed two role play sessions for the client. In one session, I fashioned questions on three to four hard topics. To find questions, I used three prior depositions of the client taken by opposing counsel. I brought in a female colleague to play the opposing counsel in order to mirror the real life case. I gave her specific instructions as to the tone and demeanor to take (dry, unemotional, slightly condescending).
In the second session, I revamped the questions to hit new topics. I found a different female colleague to play opposing counsel, with a fast-paced, highly emotional tone. Each session lasted thirty minutes, broken into three eight-minute pressure periods. In between the pressure periods, I checked in with the client, asking how she felt and which questions stumped her. We quickly discussed the points and then moved on. After the session was complete, we did a deeper dive into the difficult questions and her responses.
These role play sessions significantly helped the client understand what she would face in the courtroom. The client learned, on her own, what responses got her into “hot water” and led to more troubling questions. She experienced the panic of being asked a question she didn’t know how to answer, but in a safe place. Facing the experience and learning from the good and the bad is where preparation should be aimed.
The learning retention rate is exponentially higher through role play as compared to just being lectured.
The rise of virtual meetings has made role playing with outside lawyers much easier and there’s no excuse not to have someone else role play. No one has to drive to your office or block out a large chunk of time. Instead, you can set up a Zoom meeting and your colleague can jump on from their office. To be efficient, I set a timer and don’t ask for more than 30 – 40 minutes of their time. There’s no excuse not to use someone other than yourself to role play. If you choose to play opposing counsel, you can significantly damage your relationship with the client.
If you’d like help designing a role play, or need someone to jump on Zoom to play opposing counsel, please don’t hesitate to email [email protected] or call (512) 893-5700.