How to Testify During Cross Examination

by | Aug 13, 2013 | Trial, Trial Testimony, Wendy Hernandez Blog

How to Testify During Cross Examination

Cross-examination is not for the faint of heart.  You are on the defensive during cross.

Your answers during cross examination can totally change the “match” and win (or lose) you the case.

Because of this, you MUST be prepared, and you MUST know how to block against the verbal punches delivered by your opponent.

Although I can’t tell you how to land a right hook or deliver a karate toe kick, I CAN tell you how to testify during cross examination.

Here are my biggest and best pointers on what to do during cross:


1.  Know where you stand on key issues in your case.

Practice stating what those positions are.  Be ready to tell the world your positions at a moment’s notice.  Practice explaining what your positions are to your mom, friend or sibling before you ever set foot in the courtroom.

2.  Be committed to your positions.

Don’t be afraid.  Speak the truth about them.  Hold your ground, even if your opinions are not popular.  (But know the difference between reasonable and unreasonable positions…see more in number #11 below.)

3.  Let the person cross-examining you finish his or her question before you answer.

Don’t interrupt.  If you do interrupt, the judge might think you are being argumentative and hold it against YOU.  Aside from that, you could mess up “the record.” And, by listening to the whole question, you will be sure to know what the question is (as opposed to guessing about what you think the question will be).

4.  When you testify during cross examination, never, ever, EVER guess about the answer you are about to give.

If you don’t UNDERSTAND the question, ask for it to be rephrased.  If you don’t KNOW the answer to the question, say “I don’t know.”  If you don’t REMEMBER the answer to the question, say “I don’t remember.”

5.   The cross-examiner is going to try to “box” you into “yes” or “no” answers.

That is his job.  You can try to explain your “yes” or “no” answer, but the judge might shut you down and tell you to answer “yes” or “no” only.  You can try to say that you can’t answer with a “yes” or a “no.”  The judge still might tell you to “try.”

Try.  And don’t worry. Because…

6.  You will have a chance to rehabilitate yourself on re-direct examination.

What this means is after you testify during cross examination, you will get the chance to tell your side of things again.  This is when you can talk more about the “yes” or “no” answer that you gave earlier but weren’t able to explain.  A word of caution: do not spend your time trying to fully explain every question you wanted to talk more about; only hit on those cross-examination questions that go to the heart of your case.

7.  If you have a less-than-skilled cross examiner who makes the mistake of asking you an open-ended question, don’t give more of an answer than s/he is asking you to give.

In other words, ONLY answer the question that is being asked.  Don’t go off on a two minute narrative answer.  You run the risk of giving too much information and information that might hurt your case.

8.  Before you give every answer, stop and take a breath.

Think for 2 seconds before you talk.  Remember your position on the issue.  Proceed with caution when answering.  Don’t rush.

9.  It is OK if you feel emotional.

It is OK if you cry.  It is NOT OK to get angry, defensive, abusive or argumentative with the cross-examiner.  Keep your cool.  Be calm, even if you feel like you are getting skewered.

10.  Be prepared.

This not only means knowing your position, it also means practicing beforehand.  If you can, get a friend to help you practice being “on the stand” before the “main event.” Practice answering questions you think you might be asked.  Let your friend be the devil’s advocate and “attack” you.  Like anything, with a little practice, you will be “better” when the real deal happens.

11.  Inform yourself on the law.

Know what the law says on the issues at hand.  Don’t hold a position that is completely contrary to what the law says.  The judge will think you are totally unreasonable.  This could cause you to lose. Pick your battles wisely.

For a good cross-examiner, destroying someone during cross can be compared to landing the knockout punch.  Cases are won and lost during cross examinations.  The good news is that if you are about to testify during cross examination, you CAN defend yourself.

If you are in it to win it, you will follow these rules.   If you choose to do so, you will be able to block the verbal punches delivered during your case.  You will know how to testify during cross examination.

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