Never Give Up On Cross-Examination

Don’t expect a deceitful witness simply to agree quickly with your cross examination questions; keep pushing.

john-balestriereDon’t expect a deceitful witness simply to agree quickly with your cross examination questions (any of them). Keep pushing and don’t give up.

In a jury trial I had a couple of years ago where we represented plaintiffs, the main defendant had lied in his deposition about his language abilities. Whether he could speak a given language was highly relevant to our claims since one of our claims was defamation, and was based on a series of communications made in a particular foreign language (one this individual claimed not to speak well). We had separately developed evidence to show that he was lying and—rather than make the common error of jumping all over him during the deposition, my colleagues and I avoided this, knowing the benefit would have been minimal—we saved it up for trial. In the end, the defendant admitted, in front of the jury, “Yes, yes, I gave false testimony under oath in this case, yes.”

As you might imagine, we won on the defamation claim (and everything else, including a damages verdict many dozens more than defendant’s last offer).

Getting that admission was not easy. I didn’t simply stand up and say, “So when you said you didn’t speak Esperanto [it wasn’t Esperanto] you were lying, right?” It took more than 10 minutes. That may not seem long, but imagine being in court and seeing one lawyer try to get a “yes” essentially to one question (“you lied when you said you didn’t speak Esperanto, right?”) for more than 600 seconds. I probably asked him about 75 questions at this point. He parried at each turn, “Well, I don’t know, that’s not really what I said”; “I think you’re taking it out of context”; “That’s not exactly what I meant”; “Is that my voice? [in response to a recording we played] I mean, I’m not sure that’s my voice”). But I was relentless (and, separately, my colleagues had planned for this cross for a long time). I didn’t lose my cool. I declined his multiple invitations to argue with him about what he did mean, or what the context was. I knew what information we needed to win. I just completed a civil RICO trial (where again cross helped us win) where there were combined over a thousand documentary exhibits. In that defamation case I don’t think we had more than two dozen documents in evidence. More than normal, the key to victory in this case depended on which witnesses the juries believed. I needed to catch him in a lie and did, because of all that preparation, and because I didn’t give up.

I learned this rule years ago from my Bureau Chief and other experienced trial counsel at the Manhattan District Attorney’s Office, which has been implemented at our firm ever since. It’s perhaps easier to understand how this Never Give Up rule works with the kind of example I was given at the DA’s Office. It relates to a negligence example and shows very directly how this works:

Q: When you were driving down the street the light was red, right?

A: There was so much going on, I just, I don’t really . . .

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Q: Sir, you were driving down the street, right?

A: I mean, well, we were in the car, and, I mean, I’m not sure what anyone else saw.

Q: Sir, you were in the car, right?

A: I don’t, um, yes.

Q: So you were in the car, right?

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A: Yes.

Q: You were driving the car, right?

A: I was in the car, that’s correct.

Q: You were in the car and you were driving the car, right?

A: Um, yes, I was in the driver’s seat, yes.

Q: You were driving the car with your hands on the wheel, right?

A: I’m not sure where my hands were, but . . .

Q: You were in the car in the driver’s seat, right?

A: Yes, uh, yes.

Q: And you were driving the car when sitting in the driver’s seat in the car, right?

A: Yes.

Q: And the light was red as you were driving, right?

A: I, well, I’m not sure what anyone else saw.

Q: I’m talking about you, sir—when you were driving the car down the street you saw that the light was red, right?

A: I did see, yes, I could see.

Q: And you saw while you were driving the car that the light was red, right?

A: Uh, yes.

I don’t mean to bore with the long question-and-answer session, but to show how hard someone can fight you and how hard you have to keep at it. What the questioner in the above needed to get out was that the witness was driving the car when he saw the red light. But — and this is how it works — don’t even expect the witness to agree easily to the simplest of facts, such that he was in the car or, that when he was in the car, he was actually driving. I won’t address the oft-stated rule that you never ask a question to which you don’t really know the answer (it’s not completely the rule, but I analogize it to employing CRAC in brief writing: until you really know your stuff, it’s a good rule to follow all of the time). The point is that even if you do know the answer don’t expect it to come easily. Even the buildup questions will be tough.

But don’t give up. Indeed, there comes a point where even a very good, well-prepared, intelligent witness will simply start to look like a liar if he continues to parry your questions and—it’s again essential that you maintain a sober, if firm, demeanor—it becomes clear he doesn’t want to answer.

Don’t give up and you can win.


John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.