One tactic that some attorneys may consider when cross-examining a witness is to “trip up” the witness. I’ve seen this many times at the different trials I’ve attended. It’s a tactic that seems like a good idea at first until you think about the outcomes.
What is this tactic?
This tactic of trying to “trip up” a witness is to catch the witness in a lie or to confuse them in order to discredit their testimony. Some attorneys may see this as a good strategy because it can weaken the other side’s case and make it easier to win.
Why I’m against it
The reason why I’m against this tactic is because it can backfire and make the attorney look bad or it can make the witness sympathetic to the jury. Additionally, it can also be viewed as unethical and can lead to disciplinary action by the court – especially if the judge notices that you’re doing this purposely.
Furthermore, tripping up a witness may not be in the best interest of attorney’s client. The attorney’s main goal should be to get the best outcome for their client, not to discredit the opposing witness.
You don’t want to become Saul Goodman. While his character is great at deceiving people – in real life, it doesn’t work
In conclusion, while cross-examination is an important part of a trial, tripping up a witness is not always a good idea. Attorneys should consider the potential consequences of this tactic and weigh them against the potential benefits before deciding to use it in a trial. Additionally, the attorney should always keep the best interest of their client in mind when making strategic decisions.
In this article, we’ll be explaining what to do for each scenario that you may come across and answer the pressing questions you may have about how the witness stand works.
As a witness – you are the main character and star of the show. If you’re on Direct Examination, you should work with your attorney to make yourself the main character. If you’re on Cross Examination, the opposing attorney will try to make himself the main character and you need to combat that without being too aggressive.
A witnesses job during direct examination is to deliver your team’s side of the story. As a witness, you should introduce yourself, explain why you’re here, and explain what happened.
A witnesses job during cross examination is to sway the jury towards your team’s theory. The opposing attorney will try to sway the jury by asking you questions that present their case-in-chief in a better light. However, your job is to provide answers that sway the jury towards your own team’s case-in-chief.
The Differences for Cross Examination
On a Cross Examination, you have to try harder to be the main character without being too aggressive against the opposing attorney whose trying to take the spotlight away from you. You want to look likable and make your team’s case-in-chief more favorable compared to the other team.
For example, the attorney may ask “Mr. Doe, you didn’t see the defendant walking into the bank wearing a red shirt, is that correct?” If you think about this question, you can sway it in your favor by saying “I actually saw the defendant walking into the bank wearing a bright colored shirt. Yes.” This response lets you sway the jury by remarking that you did see the defendant wearing a bright colored shirt but not wearing a red shirt.
The best way to handle cross examination is to listen carefully to the question, take a three-second pause to think and come up with a response, and answer the question with a concise comment. You will accomplish three things: you won’t look aggressive if you come up with a good response and answer the question, you can sway your jury into your favor with your response, and you will use the other teams time.
Be Aware of Time
For Direct Examination, your attorney is on the clock and the answers you provide are on the clock. Therefore, make sure that your questions and answers for direct examination are within the time limit. This will take practice and collaboration with your team. If you find that you are overtime, you may have to cut questions and answers and compromise with you team to create a cohesive case-in-chief from the direct examination side.
For Cross Examination, the opposing team’s clock is used. Many teams will try to filibuster the opposing team to make them lose time on their clock. However, you should try to avoid this as this makes you look aggressive and defensive to the jury. You still want to answer the question by swaying it in your favor and using the other teams time but you shouldn’t filibuster the opposing team. The biggest thing that bad teams lack is: balance.
How should I act? What do I wear? How should I walk? How should I talk?
At the end of the day, you are an actor. If you’ve developed a character, use the characteristics you’ve developed.
For example, if your character is a CEO, you should walk and sit with a strong presence. You should talk like how a CEO would talk. You should dress like how a CEO would dress. These are all things that you need to keep in mind of when you’re playing a witness.
If you’re stuck, take the time to watch a movie or TV show. See how the actors act and dress.
For example, in the HBO series – Succession – look at how Kendall Roy (Jeremy Strong) dresses compared to his father, Logan Roy (Brian Cox). Kendall dresses with a slimmer suit and goes tie-less while his father wears a more traditional fitting suit and wears a tie.
The idea behind costume design is to display the differences between characters. I don’t want to spoil Succession but Kendall wants to make the company more modern while Logan wants to keep the company the way it is. That is the reason why the costume designer put Kendall in a more modern cut suit while Logan wears a more traditional cut suit. Your outfit is part of your character!
Where do I look?
When the attorney is asking you a question, you should turn your head and look at them. When you are presenting your answer to the judge or jury, you should turn your head and look at the judge or jury.
This means that you’ll have to turn your head like a swivel every time you deliver an answer. You should never point your head towards the ground or table. And you should maintain eye contact with the people that you are talking to.
You can also have fun with the way you turn your head. If you deliver an answer that is pressing towards the other sides witness, you may want to turn your head towards them to point them out to the jury or judge.
Is that all?
It’s a bit hard to explain how to portray your character. It takes practice and strategy development on your team’s part on how you want your characters to appear. At the end of the day, you’re an actor acting in a play. Have fun!
For most if not all teams doing Mock Trial, you’ll be preparing a script of questions that you’re going to ask your witness – for both direct examination and cross examination.
Even if you’re a very advanced team that comes up with questions on the spot – you most likely prepared a guideline of what questions you may ask.
With that being said, if you prepared a script of questions, you should learn the techniques of Sound Scripting to help make your question flow more natural.
What is Sound Scripting?
Sound Scripting is a methodology of marking emphasis on context words in your script. For example, you can take a sentence like “The quick brown fox jumped over the lazy dog” and when you add Sound Scripting, it will look like “The QUICK brown fox JUMPED over the lazy dog.”
Why put in the effort to Sound Script?
A lot of teams who don’t sound script often sound like they’re reading off a script even though they’ve memorized their script. When do they do this, they sound un-natural and boring. When you’re boring, your listeners will tune you out and miss what you’ve said.
By adding sound scripting, you add emphasis on context words and give your script more character. It also makes it a lot easier to come up with hand movements as you talk with more emphasis.
What does Sound Scripting look like?
It is your testimony today that John Doe set the truck on fire?
Is it true that John Doe was wielding a knife on Main street?
What did you see on Main street the night of January 13th
I saw quite a large man wearing a brown t-shirt wielding a knifeon Main street that night on January 13th.