Cross-Examination for Non-Attorneys: How to Do It and How to Respond to It

 

Andersen Law PC does both unbundled representation of clients who do not have full-service attorneys and also full service representation where we are attorneys of record who do everything. Both scenarios involve cross-examination if a hearing happens. How to do Cross-Examination for Non-Attorneys

With unbundled representation, you may choose to do a hearing by yourself without an attorney there to represent you.

But even with full service, you may have an attorney or the other party (usually your former spouse or partner) cross-examine you.

In both cases, there are rules, principles and tips to keep in mind.

A law professor named Irving Younger came up with ten commandments of cross-examination. They are a good place to start.

  1. BE BRIEF: When asking your questions, make your points and be done. You are limited to the matters raised during the direct examination, and there is no reason to repeat all of those issues. Choose the main ones that make a point about the PROOF YOU NEED TO PROVE YOUR CASE.One of the most common fallacies of law is that you will win your case if you “catch the other person in a lie.” Not necessarily. The court needs to look at all the elements of the legal issue and see how the facts fit into it. So, for example, if the court is trying to decide the best interests of the child, they want to know about factors like whether you both can spend time with the child and whether you both can put the child’s interests ahead of your own. If you catch the other party lying about whether they quit their job or were fired, the judge may not care as long as they are a great parent. On the other hand, it may affect child support if the person is saying they cannot find work. Different issues, different factors.

    When responding to cross, be brief. “Yes.” “No.” “I don’t know.” “I don’t understand the question.” You can explain your answers later on redirect.

  1. USE SHORT QUESTIONS AND PLAIN WORDS: It helps if everyone understands what you are asking. In fact, whether cross-examining or answering, it is pretty easy to confuse yourself (as well as the judge and other people in the courtroom) if you go on too long in asking or answering questions.
  1. ALWAYS ASK LEADING QUESTIONS: A leading question is the opposite of an open-ended question. A leading question has the answer built into it. It does not give the witness any wiggle room to get out of the answer.Here are some leading questions. They are good for cross-examination (in fact, they are so good at leading the witness to the answer that you are NOT allowed to use them with your own sympathetic witnesses).

    – You have not paid child support this month, isn’t that true?

    – You sent the other parent five texts saying, “Never text me again.” Isn’t that correct?

    – You did not appear at the last hearing, did you?

    By contrast, open-ended questions start with who, what, where, which, when, how, why, explain, etc. While great for your own sympathetic witnesses, they are NOT good for cross-examination. They open the door to long-winded testimony and the witness wiggling out of what you want them to say.

    – When did you last pay child support?

    – How much child support did you pay?

    – How often do you text the other party?

and, worst of all 
– Why did you do it?

  1. DON’T ASK A QUESTION TO WHICH YOU DO NOT KNOW THE ANSWER: I think this speaks for itself. Follow it. Do your homework BEFORE the hearing and not through a fishing expedition at hearing. You may not like what comes up at the end of your hook!
  1. LISTEN TO THE WITNESS’ ANSWERS: I take notes during the cross so I know what to use later and what to use in a closing argument. Don’t just read through your questions to get it over with. Pay attention. If you are representing yourself, you may want a person who is not a witness to sit in the courtroom (not at your table as that is not allowed) to take notes for you.
  1. DON’T QUARREL WITH THE WITNESS: Attorneys are accused of badgering if they do this. For non-attorneys, it does not help you and it wastes time. You are not allowed to testify as part of cross-examination. You are only there to ask good questions and live with the answers as they come. If it is not responsive, you can ask the judge to strike the answer as non-responsive. If the witness is being obnoxious and refusing to answer, you can ask the judge to instruct them to answer responsively. But arguing does not help.Especially in a domestic violence case where you are the accused or the victim, do not do this. It makes the accused look like a bully and it makes the victim look like a bully (not a victim) too. Courts definitely look at the behavior of parties when they act as their own attorney and cross-examine the other party. I have heard judges say that they find it very revealing.

    As a witness, do not quarrel for the same reasons.

  1. DON’T ALLOW THE WITNESS TO REPEAT DIRECT TESTIMONY: Leading questions prevent this. And, as mentioned in No. 6 above, you can ask the court for help if the witness is not responsive.As a witness, you may want to touch on some direct testimony, but there is no need to waste a lot of time on it. You already made these points.
  1. DON’T ALLOW THE WITNESS TO EXPLAIN ANSWERS: Leading questions prevent this. And, as mentioned in No. 6 above, you can ask the court for help if the witness is not responsive.As a witness, remember that you can explain on redirect.
  1. DON’T ASK THE ‘ONE QUESTION TOO MANY’: This is law school trial advocacy 101. We all learn it in law school. Here is how it goes: You went to the house, didn’t you? You opened the front door, didn’t you? Yes. You picked up the revolver, didn’t you? Yes. You aimed it at him, isn’t that right? Yes. You pulled the trigger, didn’t you? Yes. He fell down, didn’t he? Yes. He was later pronounced dead, isn’t that right? Yes.Okay, that is enough. You asked just the right number of questions and leave it at that. Let the judge connect the dots and make the FINAL CONCLUSION. Do NOT ask the next question.

    Oops, you didn’t listen. You just had to go on and ask ONE QUESTION TOO MANY: You killed him, didn’t you? NO. And now you opened the door to: he died later for another reason, he was already bleeding when I got there, I do not know why he died, I did not mean to kill him and I was defending myself, he was already on the floor when I got there, there were a lot of bullets flying and I am not sure, he was lunging at me — aaaugh! One question too many. Do not ask it.

    A similar point for witnesses is not to open the door to new issues on cross. A good attorney may ask you something just to open the door to a new issue, knowing you will get defensive and go into a whole new topic. Be careful what you answer and what you volunteer on cross just as is done on direct.

  1. SAVE THE ULTIMATE POINT OF YOUR CROSS FOR YOUR SUMMATION:This goes hand in hand with not asking one question too many. Let the judge connect the dots and make the conclusion at the end. And you are going to help the judge do this, if closing statements are allowed, by emphasizing that conclusion based on the law at the end.As a witness, you also want to let the judge connect the dots. You do not need to testify to legal issues. It can get confusing when you are acting as your own attorney but remember that when you are on the witness stand, you are testifying to facts. When you open or close your case with a statement to the court, you are connecting the dots.

    In parenting cases, I find it helpful if you keep a picture of your child or children on the stand with you during the other party’s cross-examination of you. Remember why you are there.

Good luck. Stay calm and do not lie, cloud the truth, curse, name call, get angry or be sarcastic. That never helps. The court is looking to see if you are reasonable. Acting reasonable during cross-examination is a great way to show that you are reasonable outside the courtroom as well.

For more information on how to handle cross-examinations, contact Andersen Law PC today at beth@andersenlawpc.com or 720-922-3880.

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