Cross Examination and Personal Injury Litigation
After direct testimony concludes, the defense attorney cross-examines you. This attorney attempts to discredit you, if possible. He or she may try to show that your version of the accident is unreliable. He or she will also undoubtedly try to prove that your losses and damages are not as bad as you would like the jury to believe. This is where the deposition testimony is so important. If you testified differently at your deposition than at trial, the defense lawyer makes this clear to the jury. If possible, this lawyer also brings out additional deposition testimony that hurts your case. (Your lawyer makes similar use of the defendant’s deposition when he or she cross-examines the defendant.)
The importance of how you respond to the cross-examination of the other lawyer cannot be emphasized enough. Cases are sometimes won or lost in the blink of an eye.
Example: A panel of arbitrators found against a party because of the seemingly arrogant way that party responded to a single line of questioning. It seemed like he was trying to outsmart the cross-examining lawyer, as if he was trying to avoid something. He should have just answered the lawyer’s question directly.
You must, at all costs, avoid appearing arrogant or evasive during the entire course of the trial. It is also helpful to avoid becoming defensive, argumentative, or extremely informal. Just answer the questions to the best of your ability in a conversational tone of voice.
One of the main purposes of cross-examination is to set up the closing argument. Sometimes the lawyer asks questions on cross that seem unimportant to the outcome of the case. The importance may be made clear only during the closing speech. For example, the defense lawyer in a grocery store slip-and-fall case may bring out during cross-examination that your shopping cart was empty at the time of the accident. During closing, the defense lawyer might argue from this that you should have seen the liquid you slipped on, since it was not blocked by any groceries in the cart. Rather than pressing the issue during cross-examination to make its relevance clear then and there, saving the issue for closing allows this lawyer to avoid the risk that you will explain away the problem.
This technique is employed frequently during the cross-examination of a medical expert. The lawyer does not expect to destroy the doctor’s credibility. In real life, the lawyer hopes to make a few points during cross-examination and then to attack the doctor’s credibility or opinion during closing argument. The technique of a fleet-footed boxer is much safer here than directly confronting the doctor with a series of impeaching questions, especially if the doctor is experienced as a trial witness. The doctor’s superior medical knowledge may allow him or her to talk his or her way through difficult cross-examination.
The traits of the witness affect the way a lawyer conducts cross-examination. The jury may deeply resent the scathing cross of a sympathetic witness. For example, the jury may have great sympathy for an elderly plaintiff who was seriously injured in an accident. Similarly, juries view children with sympathy. A jury will punish the lawyer who attempts to torch such a witness during cross-examination. It would be better for the lawyer to make his or her points in a relatively gentle, respectful way and then sit down.
The same rules and strategies of direct and cross-examination apply to eyewitnesses, experts, family, friends, police officers, and all other witnesses. The investigating police officer may testify if he or she witnessed key events at the scene of the accident. An accident reconstruction expert may testify if it will help to clarify who caused the accident. This expert relies upon evidence at the scene and witness statements to reconstruct the events leading to the accident.
Your lawyer may offer the testimony of members of your family or others familiar with the effect the accident has had on you. On cross-examination, your friends and family members are subject to questions about their relationship to you. These questions seek to show bias of the witness in your favor. Similarly, defense witnesses who are related in some way to your adversary can expect cross-examination concerning that relationship.