Surviving cross examination.

This is my second article on trial practice for surveyors. Last time I suggested a few tips to help you with direct testimony. These included certain basic concepts that could be used as a guide to organizing your information and mentally preparing yourself to explain a survey to a judge or jury. Preparation for cross examination is much more difficult because you are not in control of the process. Here, mental preparation is about all you can do.

It helps tremendously to understand what the attorney who is cross examining you is trying to achieve. Cross examination by a good trial attorney can be intimidating and is intentionally full of traps for the unwary witness. However, cross examination also has some serious traps for the attorney. Seldom will a witness be able to use cross examination to his or her advantage, but he or she can certainly minimize the damage.

Initially, you must understand that a trial is an adversarial process. The system presumes that both sides will present their best case when they have a real stake in the process, and neither is required to help the other. Most trials bear very little resemblance to a scientific, unbiased examination of the evidence. Trial work is where the person trained in the craft of lawyering shines; it is not the most friendly arena for deliberative consideration of survey evidence.

This means you can expect that many attorneys will use methods to undermine your credibility that might seem petty and, in a few cases, transparently absurd. You cannot take these techniques lightly, however. They are serious and based on years of careful study of the psychology of dealing with judges and juries in a trial setting. Many of these techniques are surprising because they are not instinctive; good trial attorneys spend a great deal of time training and practicing to get the best effect possible from the evidence they have to work with. If the facts of a case are weak, there is no requirement that the party admit to the weakness and simply ask for whatever he or she can get. The attorney can, and often does, employ several legal means to put the best spin possible on the facts.

Some of you who have been in court might never have experienced the methods described in this article-in part because they are not easy to master. They require attorneys to "think on their feet" in a rapid fire manner. I can confidently state that when you see these techniques coming, you can brace yourself for a difficult time on the stand. Also, these methods work best when the witness is unprepared and not experienced in testifying. If you are an expert witness with a number of trials behind you, the attorney might make the considered decision to "take it easy" with you because he or she expects you to be able to counter these methods. Nevertheless, instructors of trial practice courses and seminars teach these methods to any attorney who wants to specialize in litigation, so you can expect to see them if you spend a significant amount of time testifying. These methods work especially well against a defendant in a civil suit. If you have been sued for performing an allegedly negligent survey, you can expect to see them to some degree. They also work well against a lay witness who has never testified before, but I will describe them here in reference to using them to wear down a defendant. In this context, the methods become part of an overall trial strategy.

The Attorney's Strategy

Place yourself in the wingtips (or pumps) of the attorney working for a client who wants to sue a surveyor. First you will hear your client's side of the story, and you might hire a surveyor to work with you as a consultant. You might have your consultant do some preliminary investigations to help evaluate your client's case, or you might feel it is strong enough based on your client's word to go ahead and serve the complaint to start formal discovery. The discovery process is where you send the surveyor interrogatories and conduct depositions to discover the facts before trial. Depositions are expensive, but are essential for you to undertake good cross examination at trial. Effective cross examination requires that you already know the answers to the questions you plan to ask the surveyor on the stand. The first lesson for the witness is that although cross examination is designed to elicit the "whole truth" after you have told your version of the facts in direct examination, it is also an avenue for the attorney to put your testimony in a form that the attorney can use to his or her own advantage.

Questions in a deposition are designed to elicit as much information as possible and to "box in" witnesses so they cannot come up with new reasons to support their stories. Attorneys can ask questions at depositions that would not be allowed in court, as long as they are reasonably designed to lead to the discovery of other admissible evidence. This explains why the witness' attorney might object to a question and then instruct him or her to answer it anyway. The objection is simply to prevent the answer from being admissible in a summary judgment motion or as substantive evidence at trial.

Because of this need to elicit information, deposition questions tend to be broad. The most troublesome are compound questions, meaning several questions strung together in one sentence, most of which can be answered by a "yes," but some of which truthfully require a "no." Questions that assume facts that may not be true, questions that summarize earlier testimony, and "tell me all" questions are all designed to place the witness in a position to be impeached by cross examination at trial. Since you as a witness will have to answer everything, it is essential to be well-prepared for the deposition. Listen to each question closely (and ask for the question to be rephrased if you sense a "trap"), and never volunteer information not specifically requested.

At the end of the deposition the court reporter will usually ask you (the witness) if you want to review a copy and sign it. The purpose of this is to allow you one last chance to correct errors that can occur as the court reporter is transcribing. (For instance, I once testified that my survey monuments were "reinforcing bars with plastic caps." When the copy came to me to review, I found the reporter had written that I had set "reinforcing bars with blasting caps.") If you are a witness, always ask to review your deposition. Even if you don't find any errors, you will need a transcript to review before you testify at trial. By carefully reviewing your transcript, you can learn a lot about the line of questioning the attorney is likely to use in cross examination because his or her main source of information about you will be that deposition.

Once the attorney is satisfied that he or she has as much relevant information as needed to prepare a trial outline and notebook, he or she will lay out the legal issues to have the surveyor found liable, as well as the best sources of evidence to provide the needed proof. Most of this evidence will come from his or her own client and experts, but you can be assured that he or she will want to get some of that evidence from you in the form of admissions during cross examination. This outline and his or her order of presentation will usually be directed by a simple set of rules concerning the psychology behind an effective oral presentation.

The general premise is that a jury remembers best what it hears first and second-best what it hears last. Several studies have shown that the members of a jury seldom remember whether they heard a bit of evidence directly from a witness or from an attorney's exposition. This encourages attorneys to emphasize closing and opening statements. Usually, good trial attorneys will prepare their opening statements as a preview for the jury of what their own witnesses will say on direct examination. Then, knowing they have a certain level of control over the witnesses they call, they will prepare questions to elicit the same information they presented in the opening statement. Next, still before trial (or early in the trial proceedings) they will prepare their closing statements. Ideally, they would like to get the information to support their closing statement in the form of admissions from the defendant surveyor during cross examination.

If everything were to go as the attorney likes, he or she would open the trial by saying the surveyor was negligent, have his or her own witnesses repeat that the surveyor was negligent, and then get the surveyor, during cross examination, to admit to negligence. Finally, the attorney would then tell the jury on closing that the surveyor even agreed with everything said during the opening statement. In order to reach this ideal, the attorney must control the surveyor during cross examination. It is the attorney's quest for control that directs his or her method of cross examination.

Cross Examination Techniques

Attorneys' control over the witnesses they call during direct examination comes entirely from their pretrial discussions and preparations. On direct examination, attorneys can only ask general questions designed to prompt the witness to tell his or her story. Attorneys are not allowed to lead the witness. Consequently, if you are testifying as an expert surveyor, the attorney will often expect you to prepare an exposition of your opinions and the reasons behind them in advance, and not to rely on his or her questions to do any more than get you started. If you are testifying as a defendant who is being sued, the same principle applies. Your attorney can only give you the opportunity to explain your actions; he or she cannot help you once you are on the stand.

During cross examination, however, the attorney is allowed to lead the witness because the primary legal purpose is to disclose details the witness may have consciously refrained from mentioning during direct examination because they were harmful to his or her position. Leading a witness has another, equally important purpose (from a strategic point of view). Leading questions allow attorneys to describe the facts most helpful to their side of the argument and get the witness to agree that those facts are true.

A leading question, in its simplest form, suggests the answer. "What is your name?" is not a leading question, while "Is your name Mary Jane?" is. Even in this simple form, the leading question can be used to direct a certain form of answer that the attorney wants to get across. For instance, the witness might feel that a truthful answer to the second question is "Yes" when in reality her name is Mary Ellen Jane, showing that Jane is her last rather than her middle name.

In good cross examination, leading questions declare their answers. "Your name is Mary Jane, isn't it?" is a fairly good cross examination question, but a better one is simply "Your name is Mary Jane?" The best trial attorneys try to make all their cross examination questions into short, declarative sentences with no more than a slight raise of the voice to indicate a question mark. There are two reasons for this: one, it gets the attorney's words directly into the ears of the jury exactly as he or she wants the jurors to hear them (this question could lead to a closing statement such as, "She testified that her name was Mary Jane" when in reality all she said was "Yes"); and secondly, it makes the witness uncomfortable. It is generally to the attorney's advantage for the witness to begin cross examination wondering what is going on. If the witness hesitates because he or she wonders if the attorney's statement is indeed a question to answer, the witness will appear to be evasive to the jury, and, if the attorney is really lucky, the judge might instruct the witness to answer the question.

Good cross examination questions never include more than one fact at a time. Each fact can be merely an adjective. If possible, the attorney will phrase each question with a repeated, vivid verb, adding adjectives with each new sentence. For example, "The car was speeding down the road?" followed by "The red car was speeding down the road?" then "The red car with the bent fender was speeding down the road?" could all be asked in one question. But by breaking the image into three questions, the attorney was able to emphasize "speeding" three times. This trilogy, a standard rhetorical device, would then be followed by a clinching summary: "That speeding, bent-up, red car smashed into my client."

The next principle is to phrase each question so that witnesses become more uncomfortable if they answer with anything other than a simple "yes," especially if they try to explain the answer. The technique is often called "looping" and involves repeating one of the witness' words in a series, usually of three, questions. Suppose the attorney learned in deposition that the surveyor had done only a few of the type of surveys that he or she is being sued for, and so decided to make the point that the surveyor had taken on a job beyond his or her expertise. The attorney might approach this by asking the surveyor, "A person would want an experienced surveyor for this type of survey?" That question would be followed by "If a person came to you to do this type of survey, he would hope you were experienced?" The attorney would follow that with a series of questions about the types of surveys the attorney knows the surveyor can handle. Finally, the attorney would end with, "But Mr. X, only 5 percent of your business involves this type of survey?" If, at any time, the surveyor catches on as to where this is leading and tries to steer the questioning his or her way, say by answering "My experience in some other type of survey qualifies me to do this type of survey," then the attorney will then take one of his words-usually the verb "qualify"-and repeat it in three rapid fire questions (such as "X doesn't qualify you to do Y?") designed to make the jury think it absurd, or at least questionable, that experience in one field transfers to another. The attorney uses this technique to expose the witness' statement to ridicule and to force the witness back into giving simple "yes" answers.

A good trial attorney will be watching the witness' body language for a chance to rapidly ask a series of hopefully devastating questions. The attorney is specifically trying to get the witness tired and wishing to get off of the stand. Then the attorney can make his or her best points in just a few more questions and end the cross examination. Only after you as a witness sit down do you begin to realize that you agreed to something you should have resisted.

Good attorneys avoid starting cross examination questions with words that invite unpredictable answers, such as the "five Ws" (who, what, when, where and why) or the words "how" or "explain." Attorneys want total predictability in cross examination so they can get their exact words, along with the witness' acquiescence, into their closing argument. This requirement of predictability can lead the witness to an effective counter to these techniques.

Resisting Cross Examination Tactics

The most important thing to remember when resisting cross examination is that attorneys don't want to harm their own cases. Cross examination helps attorneys' cases when they make all the statements and the witness, especially a defendant, merely follows along and agrees with them. Cross examination can hurt the attorney's case if witnesses use it to tell their side of the story. The way witnesses-especially defendants-use cross examination to get their own points across to the jury is by always looking for chances to explain the "yes" answers the attorney is looking for, and by putting their own words into those explanations, rather than merely accepting the attorney's words.

If you are a defendant, you can expect a verbal duel if you resist cross examination in this way, but keep it up and you will reach the best goal you can generally expect during cross examination, that of being allowed to leave the witness stand relatively intact. Remember the attorney knows you want to sit down and hopes to lead you to a point where you believe the only way to end the ordeal is to answer with a string of "yes" answers. You can also end the ordeal by insisting on explaining your answers, thereby potentially harming the attorney's case, and leading him or her to the conclusion that it would be best to end the cross examination since it is not getting him or her anywhere.

Rest assured that the attorney will be trained in a number of methods to prevent witnesses from explaining their answers. I have compiled a list of several methods from various law school courses and seminars, and have seen all of these used in the past:

  • Attorneys will keep eye contact to put themselves in the strongest position.

  • They will control their body language by stopping any movement if the witness hesitates; this is designed to get the jury to look at the witness and wonder why he or she doesn't answer.

  • If attorneys receive answers they don't like, they might repeat the question, and perhaps repeat it again or even reverse it; this is designed to get the jury to think the witness is evading.

  • Attorneys will often use the witness' first name until they are making some humiliating point, then they will switch back to the more formal last name to make the witness think he or she is being treated like a child.

  • The attorney may merely raise his or her hand (as if saying "stop") when the witness begins a long answer or even shake his finger at the witness.

  • If the witness insists on going on, the attorney might turn his back on the witness.

  • After the witness finishes, the attorney might have the court reporter read the question back to the witness. Since the court reporter is a neutral party, this can make the jury wonder why the witness doesn't "just answer the question."

  • Another method, also a form of treating the witness like an unruly child, is to write the question on a blackboard, then read it slowly to the witness.

  • If the witness insists on continuing to try to tell his or her own story, the attorney might resort to more confrontational methods. Confrontational phrases include, "That didn't answer my question, did it?" or "My question was..." or "So your answer is yes?" or "If the truthful answer is yes, why don't you just say yes?"

  • An often effective method, if the witness launches in to his or her own story, is to have the witness repeat it. Then, the attorney will have the witness repeat it again. Then the attorney will say, "You like that story so much, why don't you tell us one more time?" The idea is to make the witness look foolish, and, if possible, to have the judge break in and say "let's go on," hopefully making it look like the witness, rather than the attorney, is wasting the jury's time.

  • Finally, if the attorney is very good at thinking on his feet, he or she might take the witness' story and break it down into a series of his or her own questions, eliminating one fact at a time until the witness gets back around to saying "yes."

    Keep in mind that the only objection the attorney can make to your explaining your answer is to assert that your answer was nonresponsive. Good trial attorneys seldom raise that objection because they risk losing some control to the judge; the attorney does not want the judge to approve of the witness giving an explanation. On the other hand, if you are a witness, you should not expect the judge to prevent an attorney from using all the techniques he or she knows to keep you in line. Courts generally approve of this method of cross examination because it is quick, and the questions facilitate the attorney's task of exposing any half-truths that might exist in your direct examination.

    Although the techniques described in this article may sound petty, they are commonly used because they usually work. Obviously, they will not work if the witness is prepared for them.

    Consequently, the main advice I can give is to be forewarned that these techniques exist, expressly for the purpose of controlling the witness and eliciting "yes" answers, and the attorney knows that if the witness resists and does so intelligently, it will eventually be in his or her best interest to simply give it up. This means it is essential that when witnesses see an opportunity to tell their side of the story, they proceed in a level-headed, non-confrontational way. If you appear to "fight back" or get angry, you will lose the jury.

    Hopefully it is apparent from this and my previous article that the key to testimony is careful preparation. Preparation requires you to organize and simplify your thoughts before direct testimony and helps you spot opportunities to effectively resist devious cross examination. Trial work is not rocket science; in fact, it is not science at all. It has, however, very important and profound consequences if the witnesses do not get their points across clearly and effectively. Mastering the word play of a trial might someday determine the value of one of your surveys just as much as the effort you put in to researching, measuring and documenting your work.

    The author acknowledges the work of Roger Dodd and Larry Pozner in their trial practice seminar, "Killer Cross Examination," as the source of some of the ideas described in this article.

    Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.