Witnesses are frequently asked difficult questions in cross examination. Some may be objectionable, and yet the attorney may either choose not to object or may miss the opportunity. Other times, the question may be technically proper or ruled appropriate by the judge. Witnesses should be prepared to answer difficult questions.
The following rules are some helpful guidelines for how to handle difficult cross examination questions.
Rules of Cross Examination
- When asked multiple questions at one time, ask for a clarification or be clear which part you are responding to.
Q: Do you drink alcohol or take illegal drugs?
A: Yes to the alcohol; no to the illegal drugs.
There would often be an objection here. If there is no objection, and it is too complicated to easily respond to both parts, then do not be afraid to ask for the question to be restated.
- Leading questions should be expected, but do not assume the “facts” included in the question are truly factual.
Q: How far was the Defendant’s car behind the Plaintiff’s car at the intersection?
A: About a car length.
Q: You’d agree that the average length of a car is thirty yards?
A: No. I don’t know the average length of a car.
This may seem silly, but witnesses often agree too readily to statements like this just because the attorney suggested it was true (and one witness did agree to precisely this statement).
- If you are providing an estimate, make it clear that you are doing so.
Q: What was the distance between your car and the car in front of you when you were both stopped at the intersection?
A: My best estimate is about 15 to 20 feet.
If you do not clearly know an answer, but you can provide an honest and fair estimate, then provide the estimate. However, it is very important to clarify that the answer is only an estimate.
- Do not speculate or guess unless you are specifically asked to do so, and then make it clear that the answer is speculation or guesswork.
Q: What was the distance between your car and the car in front of you when you were stopped at the intersection?
A: I have no idea.
Q: About how far?
A: I could only guess.
Q: Give me your best guess.
A: Ten to twenty feet.
Normally there would be an objection as soon as the witness says that they would have to guess.
- Be careful if asked a question that attempts to cut off your response, such as: “Is that everything?”
Q: You have now told me about your husband’s injuries to his shoulder, elbow, and back. True?
Q: Have we now covered all of the injuries that he claims to have suffered in the January 15th motor vehicle accident?
A: Those are all that I can recall at this time.
Notice that the witness left the door open in case he or she may have forgotten something. Most witnesses do forget—even things that may seem very obvious. It will be easier for the attorney to remind you what you have forgotten if you do not testify under oath that you have already covered everything.
- When asked to describe what you saw, heard, or experienced, use factual statements. Avoid opinions and personal attacks.
Q: Describe what you observed of the Defendant after he walked out of the bar.
A: He stumbled over his own feet. He weaved from side to side. He bumped into two cars in the parking lot.
Notice how this witness did not give an opinion that the Defendant was “drunk,” and also avoided making any sort of personal attacks. The testimony was limited to personal observations.
- If asked a question with poorly defined or vague terms, ask for clarification.
Q: We have discussed that Jenny started limping after the accidents. Did she ever have a similar problem before?
A: What do you mean by “similar problem”?
Be sure that you understand what is being asked before you answer the question.
- Refuse to read the mind of another person.
- Complex questions (such as double negatives) should be clarified before responding.
- Carefully review any statements or depositions you have given to refresh your recollection before you testify. If a question purports to quote this prior testimony, listen carefully to be sure that it was done accurately. If the quotation seems incorrect, then ask to see the exact quotation.
- If you are asked about testimony or a statement you gave that differs from your testimony in trial, answer truthfully. Some answers do change with time, and some mistakes can be adequately explained.
- At times, the attorney may demand a “yes” or “no” answer to a question the witness does not feel could be appropriately answered with either. The witness should explain why neither is appropriate.
- If asked a question that is argumentative, try to answer the question that is asked without getting angry.
Q: Why did your boss decide to fire you?
A: I can only tell you what I was told.
Q: Is it not true that you never complained of knee problems for six months?
A: Could you please restate that?
Q: Do you recall testifying during your deposition that the Plaintiff “never missed one single day of work because of her slip and fall?”
A: I do not recall that. May I see that part of the deposition?
Q: Today you have testified that you do not recall the make, model, color, or size of the car that hit the tree. True?
Q: Do you recall telling an officer three days after the accident that you could describe the car?
Q: Can you explain why you testified to something different today?
A: Three days after the accident I remembered what the car looked like, but now that it has been three years, I no longer remember.
Q: You did not always go to the doctor when you had pain in your neck before this accident, did you?
A: I do not…
Q: Objection, nonresponsive. I have asked a “yes” or “no” question.
You did not always go to the doctor when you had pain in your neck before this accident, did you?
A: I cannot answer yes or no, because I do not ever recall having neck pain before this accident.
Q: Wouldn’t you agree that it would be impossible to be hurt from a tap so light that it hardly damaged the car?
A: I do not know how car damages and injuries relate.