Tips on Being Cross-Examined

A trial has three phases.  The opening statement tells the court what evidence will be presented by each side.  The evidence phase actually presents the evidence.  The closing argument puts the evidence in context and presents each side’s arguments and issues to the court.

During the evidence phase, evidence is presented through documents and testimony.  Testimony is questions directed to witnesses, and their answers.  There are two kinds of testimony: direct examination and cross-examination.

The purpose of cross-examination of YOU is to shoot holes in your presentation and cast doubt on your story.  It also is to reinforce points or issues that she wants to emphasize in her case.  For example, if one of her issues is a request to limit your parenting time, then expect a lot of questions about each time you missed an opportunity to spend time with your children.

The best way to handle cross-examination is to answer her lawyer’s questions with “yes” or “no” as much as possible. The more you say in response to a question, the more of opportunity there is for her attorney to attack your words.

Also, remember that you – while you are talking to 4 people in the courtroom (your lawyer, her lawyer, her, and the Judge), you are telling your story to the Judge only.  Here is why:

  1. your attorney (if you have one) believes you, so your story is not to him.
  2. Her attorney is paid to believe her, so your story is not to your ex’s attorney.
  3. Your ex thinks everything you say is a lie, so you will never convince her, so your story is not to her.
  4. The Judge, however, is hearing this for the first time. That is the person you must convince.

Therefore, do not argue with her attorney, do not get sarcastic with her attorney, and do not get angry with her attorney. Her attorney’s job is to make you angry and confuse you.  So, whenever you are asked a question, count (silently) to 5 before answering.  Even the question “what is your name?”  Count to 5 and then answer.  It will calm you down, it will give you a chance to think about exactly what is being asked, and it will throw her attorney off her rhythm.  It will also mask the answers you really have to think about.  Let’s say that you are counting to 5, even for basic questions (“Do you pay your child support regularly?” 1…2…3…4…5… “Yes, it comes out of my paycheck.”).  Suddenly, a question is thrown at you in an argumentative or accusatory way, and it SOUNDS really bad:

            “Do you plan on pursuing your addiction to pornography during your parenting time with your very young children?”

Counting to 5 NOW accomplishes x things

1.                  It gives your attorney a chance to object;

2.                  It allows you to push down any emotional response to have to this type of emotionally-charged question;

3.                  It allows you time to formulate a response;

4.                  It hides the fact that you are taking time to formulate a response.

Let’s say your response is “Addiction her term.  No one has ever diagnosed me as having an addiction to pornography.  She thinks that the shots of cheerleaders during football games is pornography, so I’m not sure that she – or you – are using the term correctly.”  By pausing before all the OTHER questions, then pausing before THIS question makes your response seem thoughtful and reflective. It also minimizes the effect of this question, by NOT highlighting it with a long time to respond.  Finally, this kind of question is usually asked with a lot of emotion – maybe a raised voice – maybe even moving close to you in the witness box.  By calmly counting to 5 before responding, her lawyer is left standing there, breathing hard, maybe even red-faced – while you simply pause…. slowly turn your head so you are facing the Judge… and answer the question.

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