You Are Probably Doing Cross-Examination Wrong
But first, the news
Arbitration in the News
Labor Arbitration is a pretty obscure topic, so I keep my eyes open for examples when it hits the news. Usually, the news coverage is negative because it relates to decisions reinstating police officers for conduct that is objectionable. Because the media isn’t familiar with the process, the arbitrator gets blamed for reinstating a “bad apple.” In most cases, however, if the reporter had read the decision, they’d understand what happened.
Here’s a recent example from the Seattle Times: Seattle cop to get $600k after wrongful firing, arbitrator orders. I won’t dig into the particular problems with this article right now because the National Academy of Arbitrators will be posting a message soon, but the headline alone is wrong. The arbitrator did not order $600,000 in backpay to this officer. The arbitrator ordered backpay and told the parties to figure out how much that would be. The Chief of Police told the Times that it was $600k, but in reality, it will likely be lower. Backpay is the amount a person received that is what they would have earned if they hadn’t been discharged, MINUS interim earnings from other employment. The amount can also be reduced if the person fails to look for other employment. The unchallenged number from the Chief is intended to shock the reader, but it isn’t a number the arbitrator ordered. The reporter shouldn’t rely on the representation of one party about the outcome of the award, and they should read the award before attributing responsibility for the outcome.
Here’s a recent editorial in the Chicago Sun-Times by the head of the Illinois Council of Police, endorsing labor arbitration. I am sure people will take it with a grain of salt because, well, police, but the parties to a collective bargaining agreement must endorse and explain the process to the public.
Here’s a non-police case that I think is amusing: A Reporter’s Stand-Up Got Him Fired - Until His Jokes Were Deemed Funny. I didn’t read the whole arbitration award (because it’s long, and I’m busy) but I’m not sure why the NPR affiliate thought they needed to go right to termination when they never had a conversation with the union or the employee about how to balance his stand-up career with his reporting, and who didn’t have a clear policy about why this side gig might be a problem. It’s hard not to assume that they just didn’t like his jokes.
The Problems of Cross-Examination
Cross-examination is probably the most overutilized and poorly executed tool in the advocate’s toolbox. I’m writing a decision in a case with nine volumes of transcripts, sixteen witnesses, and nearly 200 voluminous exhibits. Because the written briefs have not summarized the facts in a manner that tells the story, I am re-reading all of this.
A few big issues jump off the page. There are unnecessary objections and speechifying by everyone, including me, and I will address these issues in another post. But the biggest issue I see is that the cross-examination of the witnesses is way too long and doesn’t achieve anything that the cross-exam is supposed to achieve.
Direct examination is supposed to elicit relevant facts to support the legal arguments one party is making. In the best scenario, we know who, what, where, when, and why something happened, and maybe how people felt about it. That’s a gross oversimplification, of course, but at the heart of direct examination is “elicit relevant facts.” In cross-examination, the other party is testing the memory of the witness and the veracity of their testimony, and maybe trying to elicit additional relevant facts that aren’t quite as favorable to the party that originally called the witness.
That’s it. Cross-examination should:
test the memory of the witness
test the truthfulness of the witness
elicit additional facts
Quite often, however, advocates use cross-examination to bully or annoy the witness or to make legal arguments that are not appropriate to fact-finding. Sometimes, questions are only intended to muddy the waters or confuse the witness or arbitrator. Aside from being a waste of time, it doesn’t work. Even an arbitrator who is confused in the short term will sort it out when they read the transcript or their notes.
Some great books and programs teach people examination skills, but they don’t spend much time on the tone that a lawyer should deploy to effectively cross-exam a witness, so lawyers learn tricks from television. This leads to all kinds of theatrics: escalating aggression, gotcha questions, and fake sarcasm are always on tap.
I might be the first neutral to say this, but these theatrics don’t work. Here are my top tips for tactics you should avoid if you want the arbitrator to trust your cross-examination.
Most witnesses have never testified under oath before. They’re nervous, and the whole format of testifying feels stilted and alien. There’s someone typing everything they’re saying, and two lawyers are arguing about their words before they can even answer a question. Many times, they are testifying because of a subpoena, or because their employer has requested that they appear. All this is to say, they aren’t usually willing participants in the hearing.
It drives me crazy when the opposing attorney, someone the witness has never met, employs bullying tactics against a witness. It’s especially irritating when the witness is either subordinate to their client in some way or is not familiar with the legal environment the lawyer swims in. When a lawyer beats up on a person like that, the neutral feels protective of the witness or causes the neutral to want to intervene to change the tone of the examination. While the attorney may feel like that’s not appropriate or fair, it’s a natural reaction of a neutral to de-escalate situations. We are in favor of learning the truth, not destroying someone because their memory doesn’t benefit the attorney’s client.
Neutrals try not to draw adverse conclusions about the case from this behavior, but attorneys should recognize when the line of questioning suggests arguments that might not favor their client, such as an indication that the client supports excessive aggression towards or mistreatment of subordinate individuals.
First-person eyewitness testimony is gold standard evidence in hearings but it’s also a historical artifact of the English system. By the time issues get to a fact hearing, most people’s memories have faded or gotten confused, and the emotions they felt at the time of the incident often cloud their recollection. For example, a man wielding a knife in Times Square was apprehended by a police officer. Multiple witnesses reported that the police officer had used a gun to subdue the man, but video evidence showed that the police officer had not drawn her weapon. Her testimony and the photographs taken at the time supported the fact that her gun stayed in its snapped-tight enclosure. However, witnesses couldn’t shake their beliefs about what they had seen because it was a very stressful event that happened in a crowded place.
When a witness does not remember perfectly the events that occurred long prior, attorneys should not treat this witness as a liar. Neutrals are aware that memory degrades, testimony can be suggested, and witnesses are trying to please their questioner, even if they are adversarial. When a lawyer acts as though a memory problem is a lie, that doesn’t impeach the witness. It feels like bullying again, and it doesn’t look good for the lawyer.
Here is an example of a cross-examination I recently witnessed.
Attorney: How many staff members were in the room that day?
Witness: I’m not sure, I remember me and Dawn, and there were more people by the end, but I don’t know the number.
Attorney: I need you to estimate how many staff were in the room that day, please.
Witness: I really can’t say. Maybe five?
Attorney: Who were they?
Witness: Again, I can’t really remember. It was more than two years ago.
Attorney: Are you covering for someone?
This question is intended as an attack on the character’s witness and is not designed to elicit useful information. Therefore, it shouldn’t be used. There are effective ways of impeaching a witness (that is, demonstrating that they are not truthful) that do not involve character attacks. Besides, who has ever answered “Yes” to the question, “Are you a liar?”
Sometimes lawyers don’t know what to ask a witness. They may have prepared some questions, but they aren’t sure what the witness is going to say at the hearing. This is more common in administrative hearings and arbitrations where there haven’t been any depositions but there’s no reason that you can’t anticipate the areas that each witness will address, and which documents they might be asked to discuss. On more than one occasion, I’ve seen lawyers flip through piles of exhibits, asking random questions about the facts to see if they can elicit some information that might damage the other party’s case. To the neutral, this doesn’t look like Perry Mason, it looks like a lack of preparation. Not every witness needs to be cross-examined about every single fact. The best lawyers limit their questions to reinforce the arguments they intend to make. It isn’t uncommon for good lawyers to not cross-examine a witness at all.
Occasionally an attorney will spin a defense that involves blaming a whole group of other people or organizations for collaborating in the destruction of their client. While fraud and conspiracy are real criminal offenses, they are rarely the cause of their client’s bad situation. As with the example of manufactured credibility that I gave above, alluding to elaborate schemes meant to frame a client is not an effective strategy for convincing the neutral that your client’s story is the one they should believe. Most neutrals have an “Occam’s razor” view of their cases, meaning that the most straightforward explanation is probably the one that fits. It’s important that all of your questions point toward a straightforward story, and not a ruse concocted by five other people and the Deep State.
This is not to say that sometimes, people aren’t out to get their clients. I have seen plenty of cases where the supervisor and the person’s co-workers did not like an employee, so everything that the employee did was interpreted negatively, and they were never given the benefit of the doubt in the way other people might have been. If that’s the story, tell that story. If the employee is not well-liked, is treated differently, and is being retaliated against for speaking up, you have a straightforward story that a neutral will understand and is likely to be elicited from co-workers on cross-examination.
Witnesses are there to testify about the events that form the basis of the issue before the neutral. They aren’t there to be reminded of their personnel records, their divorces, their mental health issues, or their criminal records. The only relevant former misconduct that should be raised in cross-examination concerns truthfulness. If they were terminated for lying or have perjured themselves in some other proceeding, that’s relevant to their truthfulness. Otherwise, leave the skeletons in the closet.
If a witness doesn’t remember something, or they gave an answer that your client doesn’t like, I can guarantee you that asking the question repeatedly isn’t going to refresh their memory or cause them to change their answer. More likely, the repeated questions will annoy the neutral and aggravate opposing counsel, who will draw you into a series of arguments that make you seem like you don’t understand what their witness is saying. Make your record and get out. If you don’t like what they said, move on and hope no one remembers it. They will, but it won’t sting as much if you don’t pound it into their heads.
I hope you found these reflections useful. If you have questions, please put them in the comments or email me: championsofconflict@substack.com. If you know someone else who might be interested in this newsletter:
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