I was grilled yesterday. Massively. And it hurt; man, it hurt really bad. Despite the fact that I spent most of my time in law school wishing for an opportunity to be cross-examined, when it came, I was completely unprepared for it.
In large part, this is because I live in the real world. Although I am a lawyer, I am primarily a human being. Accordingly, I talk to humans on a human level. But there’s something that happens to lawyers when we get into a courtroom. It’s an almost-Kafka-level change. We morph from people who use words like “so” into monsters who begin sentences with “accordingly.” We no longer simply accept things people tell us and move on. No, we hammer them on their motivation and purpose. We are, in essence, pitchers. The poor witness is the catcher, and we would benefit as lawyers from learning how to be an effective one.
This is what happened. Yesterday, Friend was forced through circumstances only partially of her own making to appear before the attorney disciplinary board of our state. She was charged with failing to disclose on her bar application that she had not disclosed on her law school application that she had been fired from a job in the late 90’s. This was a problem even though she disclosed the firing on her bar application, and also disclosed her initial failure to disclose. (If you can follow this chain of disclosures, congratulations: you’re in the right profession.) She asked me to testify on her behalf as a character witness. The rules of evidence are only partially in effect at these hearings, so “asked and answered” is not an objection that will get much play. Similarly, hearsay and speculation are generally acceptable, as are narratives.
I went to the hearing, having only briefly spoken to Friend on the subject. How much time do I need, I thought, to prepare to tell the truth to my colleagues? It turns out, I needed a whole hell of a lot. I testified for three hours. Maybe I’m a slow learner, because the first hour was brutal. The second and third went a lot better, because I changed my approach.
So even if you never have to face a grilling of your own, you will likely have to prepare a client for the unpleasantness. Herewith, some key pieces of advice from my experience.
- Answer the question. The first thing out of your mouth when the lawyer stops speaking should be a direct answer to the question asked. If possible, stick with “yes” or “no.” An explanation is not necessary. Make the lawyer work for it. And if you get chased into a hole on cross, let your lawyer fix it on redirect. Trying to dig yourself out on cross will only make your situation worse and give opposing counsel more material to work with.
- Don’t get defensive. I took the stand confidently, knowing that I had done nothing wrong. But a good litigator makes a living by shaking witnesses. That happened to me. I found myself apologizing for (largely proper) advice I had given her. But not merely apologizing. I tried to explain. By hours two and three, I got the hang of it: I answered the question and stopped talking. As the March Hare and the Mad Hatter instructed Alice: begin at the beginning; and when you get to the end, stop.
- Concede when necessary. This is a hard one, not just for lawyers, but also for civilians. It’s so hard to say you’re sorry. But when you’re wrong, you’re wrong.
“Ms. Blonde, isn’t it true that…”
Yes. Yes, it is.
- If you don’t know something, say you don’t know. Don’t try to talk your way through that. As lawyers, we’re trained to believe that we must always have an answer. But when we don’t know, we turn into the kid in fourth grade who is asked what the capital of Brazil is. We know we read the assignment, and we know we should know the answer. So we start talking: “Brazil. Hmm. That’s a big country in South America. There’s a river there. It’s the Amazon. And there was that Disney movie with the birds. I saw that last year. And it’s very warm there…”
Stop. Just. Stop. Talking.
Say “I don’t know,” and move on with your life.
- Take off your lawyer hat. When you’re a witness, your job is to answer the questions. Leave the arguments, theorizing, and legal jargon to the lawyer on the case. Your job is not to impress the jury; it is merely to provide them with information.
I highly recommend that you learn and internalize these tips. Believe me: they will not only make you a much better witness should you ever have to be one, but they will most assuredly make you a better trial lawyer.
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