919 E. Main Street, Suite 1130 Examination and Cross-Examination: Getting the Facts: Trial Practice Skills. Vail Cloar ( Do not underestimate the cross-examiner. A productive cross-examination keeps the jury engaged with the very first question and comes to the point quickly, hence the longer a cross-examination is, the less effective it is. Identify three strengths of an effective cross-examination. The defendant’s attorney conducts direct examination of the witnesses, and the plaintiff’s attorney cross-examines the witnesses.Although these back-and-forth rounds of questions can seem overwhelming, they’re an important part of our justice system, designed to elicit facts for the judge and jury in the most fair way possible. Kevin W. Holt is a partner at the Roanoke, Virginia law firm of Gentry Locke Rakes & Moore, LLP, practicing in the area of commercial litigation. Our clients and prospects appreciate our commitment to exceptional responsiveness —, What seemed like a small garnishment matter in Roanoke City General District Court could have had drastic implications to Virginia’s restaurant industry, but Gentry Locke was able to successfully defend…, Restaurant chain not required to garnish employee tips, Gentry Locke for the Defense Roanoke City General District Court Our client, a national restaurant chain, was sued by a creditor seeking garnishment of an employee's wages to satisfy the…, Show Me the Money: Recent Developments Concerning Attorneys’ Fees in Virginia & Practical Tips, This article, co-authored by Kirk M. Sosebee and Alicha M. Grubb, appeared in the Spring 2019 issue of the VBA Journal. ), a law clerk with the Arizona Supreme Court. The leading question is the foundation of a good cross examination because it helps direct the witness down the path that you want to take him or her through. If you listen carefully to the question, you must consider … They do not constitute legal advice or a legal opinion on any specific facts or circumstances. All rights reserved. edited excerpt of materials from the “Surviving Cross-Examination” The examination of witnesses is an integral part of a criminal trial. The expert should prepare truthful and artful answers to these questions. case are beyond the scope of their experience and understanding. However, the prosecutor can make use of cross-examination to The redirect and a closing argument are available to triage All Rights Reserved. jury on direct examination the full scope of your work and the time To excel during cross-examination, experts should understand what they are likely to be asked. The rules about cross-examination aren't as strict as they are for direct examination (when you question your own witnesses). required to conduct the expert analysis properly. Be prepared. Making concessions where necessary For example, you could begin by asking the witness how many times he has performed a certain type of surgery. The expert should prepare truthful and artful answers to these questions. Cross examination by a good trial attorney can be intimidating and is intentionally full of traps for the unwary witness. likely ask only questions to which he or she already knows the answer. Attorneys licensed to practice in VA, WV, MD, DC, NC, TN, FL, NY, CT, and TX. The attorney usually pursues one or more of the following objectives: To develop favorable matters left unsaid on direct examination To demonstrate that the witness is lying Tips For Effective Witness Cross-Examination In Remote Trials. Also discusses the cross-examination process. If the cross-examination goes poorly, a properly CROSS EXAMINATION - A GUIDE OBJECT: • Favourable Evidence. goes a long way toward withstanding cross-examination. Persuasive Direct Examination. To elicit evidence from the witness which is favourable to or supports your case – evidence which supports your version of the facts in issue. Before you testify, try to picture the scene, the objects there, the distances … Frequently, constructive cross-examination is initially used with the other party’s expert witnesses. Cross examination is the stage of a trial during which an attorney has the opportunity to question a witness who has just testified for the opposing party. Discover the most important element of a successful cross-examination. forensic and valuation services accountants who serve as expert witnesses. Know what your expert is going to say before you arrive at the hearing. This site uses cookies to store information on your computer. Here are seven tips for forensic and valuation services accountants who serve as expert witnesses. Control yourself. Find the most powerful point that the witness will advance for your case and start there, right from the first question. When you ask an open-ended question, or a question where you do not know what the answer will be, the witness … We promise we won't spam you. • To discredit. However, cross examination also has some serious traps for the attorney. other hand, people like educators/teachers. If the witness is smiling and helpful, reminiscent of Mahatma Gandhi, when … Juries Cast doubt on unfavourable evidence given by the witness. For example, getting the witness to agree with you that your expert is, in fact, an expert or that his methodology is accepted and reliable in the field can be valuable. Cross examination is the part of a trial where witnesses can really stand out by showing their ability to think on their feet and play their role convincingly. Choose your words wisely. Tell the truth. After practicing with a variety of witnesses, you'll start to understand how to adjust the tone and style of the cross examination to the visible responses of the jury, the judge and the witness. At trial, consider leaning back in your own counsel’s chair, resting your arms (in an open posture) on the arms of your chair and smiling during cross-examination. There are 2 ways to question witnesses: Direct Examination, and; Cross Examination. gbirnbaum@dickinsonwright.com David Grenardo, ABA Mass Torts newsletter, Spring 2010. presentation at the 2013 AICPA Forensic & Valuation Services of compensation, particularly if you have successfully imparted to the To elicit evidence from the witness which is favourable to or supports your case – evidence which supports your version of the facts in issue. Keeping you informed and prepared amid the COVID-19 crisis. Anticipating questions ahead of time and thinking through the answers like me to explain?”—such a comment is not likely to advance your Understanding the cross-examiner’s objectives can help an expert witness prepare to take the stand. 1974). A skilled Refresh Your Memory. Cross-Examination,” FVS News, August 6, 2014, available at tinyurl.com/k6v3lm3. It is not difficult to identify foundational principles that, if properly understood and applied, allow you to “survive” cross-examination. A cross examination is where the attorney conducts an examination of the other side’s witness. Editor’s note: This checklist is adapted from an Understanding the cross-examiner’s objectives can help an expert 801 Main Street, 11th Floor attorney” will have the opportunity to question you again, if to destroy your professional air. For example, in cross-examination, you can: ask leading questions, and challenge the other party's evidence (that is, try to show that it's not reliable or correct). Similarly, be prepared to testify about your hourly rate and the cost The appearance of an The questioning attorney wants, maybe needs, to control the witness in order to build useful testimony in a deposition or to highlight useful testimony in trial cross-examination. In fact, experts should consider the likely areas of cross-examination they will face as part of their preparation process. Understand the role of the redirect and closing Professor Charles H. Rose III discusses how to structure crossexaminations to create persuasive impact. No matter how … Get admissions where you can. You will need to question your witnesses and will be given the opportunity to question the other party’s witnesses. Richmond, VA 23219. The witness’ role is limited to affirming your declaratory statement. Tell the Truth. Some are essential to make our site work; others help us improve the user experience. Lynchburg, VA 24504, Richmond Instead, go into a courtroom and watch a trial. It is not difficult to identify foundational principles that, if properly understood and applied, allow you to "survive" cross-examination. This quick guide walks you through the process of adding the Journal of Accountancy as a favorite news source in the News app from Apple. Bias preference of one outcome over another, or a party over another. On the Much of the information you gather for cross-examination is from opposing counsel’s direct examination. However, the prosecutor can make use of cross-examination to Although I think e-discovery is a more powerful engine for discovering the truth, effectively utilizing cross examination questions comes in at a close second and is indispensable when e-discovery isn’t available. Seven Tips for Direct Examination of a Custody Evaluation Expert 1. Roanoke Start Strong, End Strong. cause. It is not difficult to identify any injuries. First: Do not change your demeanor on cross. Preparation is key to surviving even the Your cross-examination will be structured if you follow the following steps:-Keep your cross-examination to four points which support your … CROSS EXAMINATION - A GUIDE OBJECT: • Favourable Evidence. Even so, every detail necessary for effective examination of witnesses cannot be found in a single source.1 Such unfound details are practical skills and require years of learning, practice, and experience. experts insist on occasionally adding a rejoinder—such as “Would you trial lawyer’s review of an expert’s written work and prior testimony Get admissions where you can. foundational principles that, if properly understood and applied, This is critical because the defendant’s witnesses may provide the last testimony heard by the jury prior to closing argument. witness, do not “open the door” to attacks on a witness’s character on cross-examination. “It Depends…” Closely related to the “Not necessarily,” the “It depends” applies when the principle … issues to be addressed at trial, developed an expertise equivalent to A 5½-minute video that gives tips for using witnesses as evidence in a Supreme Court family law trial, including choosing your witnesses, planning your questions, and the procedure at trial. Did you know that there are tried-and-true cross examination strategies for … Click here to read the formatted publication version in…, New Overtime Rules Effective January 1, 2020, The long-anticipated “Final Rule” setting the salary thresholds employers are required to pay in order to satisfy the “salaried basis” requirement for the “white collar” exemptions was released by the…, Energy, Mineral Rights & Natural Resources, Electronic Discovery & Document Management. Be the first to know when the JofA publishes breaking news about tax, financial reporting, auditing, or other topics. 866.983.0866. The leading question also let’s you do most of the storytelling. cross-examination may result in the expert answering “yes” 20 or 30 not assist the questioner when he or she appears confused or impartial educator with a professional manner can be invaluable. Don’t rely on movies or TV shows. Understand the expert’s role in the case. Do not try to “win” the case. Also see the article “Seven Tips for Surviving We’re gathering the latest news stories along with relevant columns, tips, podcasts, and videos on this page, along with curated items from our archives to help with uncertainty and disruption. —By Gary L. Birnbaum ( Assume that the cross-examiner has, at least on the place a good deal of faith in expert witnesses, and even judges are The most basic of the cross-examination tips, but also, arguably, the most important is … This instructive white paper outlines common pitfalls in the preparation of the statement of cash flows, resources to minimize these risks, and four critical skills your staff will need as you approach necessary changes to the process. Understand that the witness on cross-examination is a witness primed to resist giving the examiner the answer sought. Accordingly, any opening permitted the witness is one of which the witness will invariably take advantage. LEGAL DISCLAIMER: THE RESULTS OF CLIENT MATTERS DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH MATTER. For more on bias see our article on winning when bias is all you have. and cross-examination. Cross examination has been described as “greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev. During opposing counsel’s direct, listen not only for factual inconsistencies from the witness, but notice signs of possible weakness, anxiety or confusion. The cross-examination of witnesses needs to be structured and this can be achieved through appropriate planning. Do An effective cross examination must not waste primacy. is an essential part of his or her preparation. While certain Experts are likely to be […] Force Majeure - COVID-19: Foreseeable or Unforeseeable? Before your trial you will want to think about questions to ask the witnesses. Cast doubt on unfavourable evidence given by the witness. By using the site, you consent to the placement of these cookies. of your work. 61 For example, if your witness is a doctor, it is appropriate to show that the doctor is a member of a prominent medical organization to help establish credibility. This is critical because the defendant’s witnesses may provide the last testimony heard by the jury prior to closing argument. Take nothing personally. Answer Only the Question That Was Asked. Summer is hot, and these fourteen tips for direct and cross examination of custody evaluation experts will definitely heat up your practice this year. Direct Examination prepared attorney may be able to repair most of the damage on (such as “always” and “never”) and do not be reluctant to say “I don’t With these tips, you’re sure shine bright! © Association of International Certified Professional Accountants. said in the past. redirect. You need to know everything that’s in your witness statement – … Library updates only. An effective cross examination must draw blood from the start. ©Gentry Locke Attorneys 2020. analyze/investigate/explore/address that matter as it was outside the This is a big one, and witnesses routinely violate it. Conference. ), a senior litigator at Dickinson Wright PLLC in Phoenix, and Here are seven tips for forensic and valuation services accountants who serve as expert witnesses. 1974). On cross-examination, you likely rely on your physical presence, volume and body language to facilitate your control of witnesses — and to keep judicial interest. To excel during cross-examination, experts should understand what they are likely to be asked. By James J. Mangraviti, Jr., Esq. This Article outlines ten tips for both direct and cross-examination, which certainly is not an exhaustive list. 21 Gentry Locke Attorneys Recognized in The Best Lawyers in America. nobody wants another advocate. Although I think e-discovery is a more powerful engine for discovering the truth, effectively utilizing cross examination questions comes in at a close second and is indispensable when e-discovery isn’t available. Our clients and prospects appreciate our commitment to exceptional responsiveness — (Excerpts from this piece were originally published in Law360) PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE SUCCESSES. Starting the cross examination with the witness’s bias can cast a shadow on the rest of his or her testimony. arguments. Select to receive all alerts or just ones for the topic(s) that interest you most. ... Four Critical Tips for Taking Your First Witness at Trial. • To discredit. An effective cross examination will start strong and end strong. These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. Understanding the cross-examiner's objectives can help an expert witness prepare to take the stand. Roanoke, VA 24011, Lynchburg Electronic databanks Prosecutors should prepare a cross-examination for each witness in light of each of these goals. Reconciling your cross-examination with the claims or defenses you are asserting in your case is the overarching concern for an effective cross-examination, so time spent thinking through each witness is an excellent starting point. looks more impartial than vehemently resisting every inquiry. scope of my assignment.”. It was published in Litigation News, Volume XIII Number 4, Winter 2006. For an attorney taking a deposition or conducting a cross-examination in trial, there is one key word that describes that attorney’s strategy: control. Writing for Law360's "Expert Analysis" column, Joy Odom, Lauren Zimmerman and Megan Larkin examine how attorneys can deliver memorable and effective cross-examinations during virtual trials. most carefully crafted cross-examination. Section 135 – 165 of the Evidence Act, 1872 deals with examination and cross-examination of witnesses. generally receptive to such testimony when the critical issues in a vcloar@asu.edu know,” “I don’t recall,” or, when appropriate, “I did not You are urged to consult your own lawyer concerning your situation and specific legal questions you may have. consecutive times and then leaving the witness stand. In fact, experts should consider the likely areas of cross-examination they will face as part of their preparation process. Bias is the reason you are more likely to think that a call against your favorite team is unjustified while a call under the same circumstances against the opposing team is more than warranted. Do not be embarrassed by, or defensive about, the level Kevin represents companies and individuals in business and contract disputes, including complex financial and real estate matters. Here are seven tips for 10 Franklin Road S.E., Suite 900 A perfectly conceived Watch a cross-examination. This article borrows from the invaluable lessons taught in the program. The cross-examiner will decline and suggest that “your Remain courteous but firm. Prosecutors should prepare a cross-examination for each witness in light of each of these goals. Tips For Effective Witness Cross-Examination In Remote Trials 08/13/20 Writing for Law360's "Expert Analysis" column, Joy Odom, Lauren Zimmerman and Megan Larkin examine how attorneys can deliver memorable and effective cross-examinations during virtual trials. He also represents clients with cases involving intellectual property rights. August 13, 2020. Cross examination has been described as “greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev. Pay attention to how attorneys ask questions and how witnesses respond. The cross-examiner will appropriate, on redirect examination. The other side will also be calling witnesses. Prepare. allow you to “survive” cross-examination. But The concept of cross-examination is that the lawyer is supposed to control the witness and force the witness to answer questions harmful to an adversary’s case. Kevin Holt is a partner specializing in commercial, employment, ERISA, and intellectual property litigation. Memorize Your Witness Statement. Witness testimonies are one of the most reliable evidence because the person giving the statements has personally witnessed the event happen. Trial transcrips and practice materials on the examination of witnesses. Generally avoid absolutes He attended the National Trial Advocacy College at UVA in 2006. Generally, you should not witness prepare to take the stand. Suggestions of incompetence or sloth may be designed to anger you or Read our privacy policy to learn more. and public records requests make it easy to see what an expert has This is so important that I listed it first, and repeated it. uneducated—such ignorance is often feigned. yours and knowledge of the relevant facts superior to yours. Seldom will a witness be able to use cross examination to his or her advantage, but he or she can certainly minimize the damage. volunteer information or stray from the specific subject presented. To cross examination tips for witnesses even the most powerful point that the witness how many times he performed... The jury prior to closing argument are urged to consult your own lawyer concerning your situation and specific legal you... Crafted cross-examination traps for the unwary witness may be designed to anger or. At trial answer sought and is intentionally full of traps for the attorney witness primed to giving! To store information on your computer examination is where the attorney right from the specific subject.! Was asked a good trial attorney can be intimidating and is intentionally full traps... Testimonies are one of the information you gather for cross-examination is from opposing counsel ’ s bias can a... “ seven tips for direct examination, and ; cross examination must draw from... Unwary witness should prepare truthful and artful answers to these questions are available triage... Impartial educator with a professional manner can be achieved through appropriate planning advance for your case and there. Part of their preparation process 20 or 30 consecutive times and then leaving the witness ’ role is limited affirming! Business and contract disputes, including complex financial and real estate matters of his or her testimony experts should the! Withstanding cross-examination necessary looks more impartial than vehemently resisting every inquiry deals with examination and cross-examination Getting! Help an expert has said in the expert ’ s direct examination ( when you question your witnesses and be! Prospects appreciate our commitment to exceptional responsiveness — 866.983.0866 may result in the program foundational principles,. To exceptional responsiveness — 866.983.0866 rely on movies or TV shows for surviving cross-examination, experts should consider the areas. Affirming your declaratory Statement every inquiry … Memorize your witness Statement UVA in 2006 is. To testify about your hourly rate and the cost of your work be designed to anger you or to your! - a GUIDE OBJECT: • Favourable Evidence about tax, financial reporting, auditing, or other topics most! Requests make it easy to see what an expert witness prepare to take the stand ’ s witness question let! Toward withstanding cross-examination Practice materials on the rest of his or her.! Role is limited to affirming your declaratory Statement reporting, auditing, or other topics are. Ones for the topic ( s ) that interest you most suggestions of incompetence or sloth may be designed anger! Hourly rate and the cost of your work testify about your hourly rate and the cost your... Properly prepared attorney may be designed to anger you or to destroy professional! Site work ; others help us improve the user experience, including complex financial and estate. You will want to think about questions to ask the witnesses these cookies,! For direct examination, and intellectual property rights successful cross-examination over another only and are publications. About questions to which he or she already knows the answer party ’ s role cross examination tips for witnesses... Are for direct examination ( when you question your witnesses and will be the... Be achieved through appropriate planning bias preference of one outcome over another not volunteer information or from... Accordingly, any opening permitted the witness will advance for your case and start there right. Powerful point that the witness will advance for your case and start,. Client matters DEPEND on a VARIETY of FACTORS UNIQUE to EACH matter identify foundational principles,... Be prepared to testify about your hourly rate and the cost of your work and specific legal questions you have. Is all you have or just ones for the cross examination tips for witnesses ( s ) that interest you most re shine... Or sloth may be able to repair most of the Evidence Act, 1872 deals with examination and:! The article “ seven tips for both direct and cross-examination of witnesses your demeanor on cross you are urged consult... Amid the COVID-19 crisis lawyer concerning your situation and specific legal questions may... A professional manner can be invaluable are likely to be asked cross-examination are n't strict! Act, 1872 deals with examination and cross-examination: Getting the Facts: trial Practice Skills a... A properly prepared attorney may be able to repair most of the redirect closing... Rules about cross-examination are n't as strict as they are for direct examination of cross examination tips for witnesses other side ’ objectives... User experience SUCCESSES do not assist the questioner when he cross examination tips for witnesses she already knows the answer sought these,! Section 135 – 165 of the redirect and a closing argument of Gentry Locke attorneys Recognized in the.! Experts should consider the likely areas of cross-examination they will face as part of a criminal.. Can cast a shadow on the rest of his or her testimony by using the site, you re... Their preparation process by the witness is one of the storytelling performed a certain type of surgery you... Specific Facts or circumstances any opening permitted the witness the examiner the answer if you listen carefully to placement... Of cross-examination they will face as part of their preparation process of FACTORS UNIQUE to EACH matter see article. With these tips, you could begin by asking the witness breaking about! Last testimony heard by the witness stand n't as strict as they are for examination. Professional manner can be intimidating and is intentionally full of traps for the witness... Winning when bias is all you have s witness principles that, if properly understood and applied, allow to... In commercial, employment, ERISA, and witnesses routinely violate it,... N'T as strict as they are likely to be asked informational purposes only and are publications. Volunteer information or stray from the start store information on your computer cross-examination... Of traps for the topic ( s ) that interest you most s expert witnesses trial and... In commercial, employment, ERISA, and ; cross examination with witness! I listed it first, and repeated it be invaluable powerful point that the witness stand answers these. Trial transcrips and Practice materials on the rest of his or her testimony hourly rate and the cost of work... This article borrows from the start cross-examination goes poorly, a properly prepared attorney may be designed to you! Witnesses may provide the last testimony heard by the witness how many times he has performed a type! Attorney can be intimidating and is intentionally full of traps for the attorney the past opposing counsel ’ s may... Closing arguments a professional manner can be achieved through appropriate planning PREDICT or GUARANTEE FUTURE.... On a VARIETY of FACTORS UNIQUE to EACH matter rest of his or testimony! Was asked is critical because the defendant ’ s witness artful answers to these questions prepared to testify your. To resist giving the examiner the answer intimidating and is intentionally full of traps the... Witnesses respond question witnesses: direct examination ( when you question your witnesses and will be given the to... To cross examination will start strong and end strong of FACTORS UNIQUE to EACH matter prepare to take stand... For the unwary witness during cross-examination, which certainly is not an exhaustive list full of traps the. Result in the case ” cross-examination s witnesses or just ones for attorney. Examination by a good trial attorney can be invaluable UNIQUE to EACH matter will invariably take advantage UNIQUE to matter... Stray from the specific subject presented, ABA Mass Torts newsletter, Spring 2010 past SUCCESSES do not PREDICT GUARANTEE! S ) that interest you most the case questions and how witnesses respond will likely ask only to. A cross examination tips for witnesses over another, or other topics into a courtroom and a! For more on bias see our article on winning when bias is all you have the will! Witness stand is not difficult to identify foundational principles that, if properly understood and applied allow! Lessons taught in the past these tips, you could begin by asking the witness ’ objectives. Electronic databanks and public records requests make it easy to see what expert... Understand that the witness will advance for your case and start there, right from first... Alerts or just ones for the attorney conducts an examination of a successful cross-examination ten tips for and... Work ; others help us improve the user experience the specific subject presented carefully to the question, should! Memorize your witness Statement help us improve the user experience watch a trial see our article winning. Understood and applied, allow you to `` survive '' cross-examination essential to our. An integral part of a successful cross-examination contract disputes, including complex financial real!, August 6, 2014, available at tinyurl.com/k6v3lm3 as expert witnesses attorney conducts an examination of witnesses Four tips.