Have you ever testified in court?

cross examination


As one who has practiced law for many years and questioned a lot of witnesses during that time I find that one thing attorneys often forget is how difficult those minutes on the witness stand are for the person facing the barrage of questions.

Those moments present fertile segments for a writer for a number of reasons, many of which are not obvious.

So if you have occasion to write courtroom scenes in a short story or novel consider some of these factors.

First is the old saw that an attorney should never ask a question unless he already knows the answer.

Witness examination, whether the direct exam or the cross exam, from the lawyer’s perspective is about only one thing: the attorney seeks to have the witness provide him the information he needs to support his case or destroy his opponent’s case.

The direct exam is the one an attorney conducts of a friendly witness.  The cross exam is the one she conducts of an adverse, or unfriendly, one.

It is not a search for the truth.

Examining a witness is the height of manipulation in which the attorney is the puppeteer, the witness the puppet.

I know that sounds cynical, but it’s the truth.

A skilled lawyer, especially on cross exam, never serves up a softball question to an unfriendly witness.

“How did it make you feel when my client slammed his car into yours?”

“I felt like I was going to die and leave my family motherless.”

Rather the testimony would go something like this.

“Ms. Jones, your cell phone records show that you were half way through a text when the wreck occurred, don’t they?”

The witness doesn’t reply.  Her silence speaks for her.

But  the gist of this post is that a writer handling a scene like that might try to approach it from the point of view of the witness, to get inside her head and mine her thoughts and apprehensions.

If the lawyer who called the witness has done his job, he will have met with the witness ahead of time and done a dry run with her, a time when he peppers her with the questions she is likely to get from the other side.  These sessions are invaluable to a witness.  They are designed to set her at ease and allow her to practice answers.

But they are also a two-edged sword.

Often the witness leaves the prep session and becomes even more anxious about what she should say.

“What did he tell me the best way was to handle that question?”

So let’s take the question about texting and see it through the witness’s eyes.

“Ms. Jones, you were texting when the accident happened, weren’t you?” the opposing attorney asks.

From her point of view: Ms. Jones thinks about the question and answer session she had two hours earlier with her attorney.  He told her the other side had not produced any cell phone records, but they had subpoenaed them and the cell phone provider might produce them in time for trial, or  might not. She knew if she admitted her texting the jury wouldn’t like her for it.  If she denied texting there was a good chance the question would fall flat. She hesitates before answering, fidgets with her hands, casts a quick glimpse at her lawyer, who is scribbling notes on a yellow pad, trying to avoid her glance.

“I never text while I’m driving,” she says.

“Shall I show you the cell phone records I just received?” the cross examiner says as he reaches into his briefcase.

“No,” she says her face crimson.  “I just remembered I received an emergency text from my husband right before the crash.”

And so forth and so on.

Of course the truth was that the opposing attorney didn’t have the records.  It was all theater.

The possibilities are endless in these sorts of scenes.

Try approaching the same scene from various points of view and see what you come up with.

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