How to Cross-Examine Your Client

One of the most important pre-trial preparation steps you will undertake is getting your client ready for cross-examination. You know that no matter how well you prepare the rest of your case, if your client falls apart during cross-examination, the case may be lost. Yet despite its importance, many trial lawyers’ client cross-examinations preparations are woefully inadequate.

The reason their attempts fall short isn’t because the attorneys don’t know what topics to tackle, and it’s not because they don’t know how to frame their questions. The reason they fall short is because most trial lawyers are afraid to practice like they’ll play.

One of my favorite maxims from sports is “Practice like you play.” From little league to the professional leagues, coaches at every level of play invoke this phrase to push their players, because they know that a player’s performance during practice determines his level of success on the field. If a player can perfectly execute drills during the third hour of practice, when his body is weary and ready to give out, then you can be assured he’ll be able to perfectly execute those same skills during the final moments of the game.

One of the worst things coaches can do is to ease up on their players when they get tired during practice. If he lets them take it easy or run at 3/4 speed, that lack of discipline will come back to haunt the team during the next game. By pushing his players hard and expecting them to give 100% during practice, the coach ensures that his players develop strong habits that will carry over to the field and help them win games. The only players who prefer “easy” coaches are the players who don’t care about winning. Winners want the coach who will push them to their limits during practice, so that the gameday adversity seems easy by comparison.

The maxim of “Practice like you play” is just as true in the courtroom as it is on the football field. That means you need to prepare your client for the type of cross-examination that he should expect in the courtroom. That means you don’t cross-examine him at 1/2 strength, or 3/4 strength, or even 7/8 strength. You need to rev it up to 100% and attack your client with the same intensity (or greater) that he’ll confront in the courtroom.

Unfortunately, many trial lawyers aren’t willing to do this. They’ll tone down their attacks when preparing their clients for cross-examination, because they want to be “nice” to their clients. After all, the client is the guy who pays the bills, right? You may respect your client, you may like him, you might even be friends with him… but not during these preparations. Put aside your natural inclination to be nice to the people you like, because you’ll be doing your client a terrible disservice when preparing him for cross-examination if you’re “nice” to him.

The harshest cross-examination your client should ever endure is the one that will take place in your office before he testifies, because that will make the cross-examination he faces on the witness stand seem easy by comparison. You don’t want your client to step down from the witness stand and think, “Holy crap, I wasn’t prepared for that!” You want him to tell you, “I thought that guy was going to be a lot worse than he was. His cross-examination wasn’t nearly as bad as I thought it would be!”

As coach Paul “Bear” Bryant said, “It’s not the will to win, but the will to prepare to win that makes the difference.” Remind your client about the purpose of the preparation session: you’re preparing to win. If you and your client are willing to prepare to win, your client’s cross-examination session needs to be rough. Make him as uncomfortable as possible. Cross-examine him as harshly as your opponent will. Even harsher. Unload on him with both barrels, giving him the most rigorous cross-examination you can muster.

During this preparation session, he may hate you for it. He may curse at you or threaten to fire you. “Why are you doing this,” he’ll ask, “do you hate me or something?”

No, of course you don’t. Just like the demanding coach who pushes his players harder than they’ve ever been pushed before, or the drill sergeant who pushes his recruits to their breaking points, you’re not doing this because you hate him. The reason you’re pushing them so hard is because you love him, and you know that if he doesn’t practice like he intends to play, he’s going to get killed when he steps onto the field of battle.

Cross-examine your client as vigorously as you can, and “practice like you play.” In the short run, he may hate you for it, but eventually, he’ll be glad you pushed him as hard as you did. (He just may not get around to saying “Thank you” until after you’ve won the case.)

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8 thoughts on “How to Cross-Examine Your Client

  1. Great insights!

    The mistake many cross-examiners make is being too harsh. Jurors are turned off by obnoxious or unreasonably severe cross-examiners.

  2. Elliot:
    I agree with you 100% on “practice like you play”. I deal alot with DAs as my attorney in prosecuting crimes and none of them want to go to this extent or trouble to prepare me for triallike that. I wish they would, I wouldn’t be as near afraid at trial.

  3. Advice to live by. Recently a client fired me because he did`t appreciate the manner in which I questioned him in my office. «Are you my lawyer or do you work for the prosecution», he asked. When I explained to him that the prosecuting attorney would ask similar questions he still wasns`t impressed. Finally, he said he would find a lawyer who believed him and would help.

    Sure enough, he found a lawyer with practically no jury trial experience to take on his case. I pray that my young colleague will not learn the hard way that a witness must be totally prepared for the cross-examination of the opposing party.

  4. This tip you gave came at the right time. One of the cases I handle is coming up for trial sometime in the middle of this year, thus, 2 weeks ago I had prepared the examinination in chief questions for the witnesses including my client and informed them that they will be cross examined by the opponent lawyer at the trial. They looked worried and I quickly told them that we should meet again to drill on the possible cross examination questions that they may face. With your advice I am more adament to prepare the questions before hand and reherse with them whether they like it or not to win the case.Thanks a million for your advise.

  5. I thought that was a very good piece of advice. You probably didn’t realize that some female lawyers may not have played sports and may never have heard this expression. I, for one, was a tomboy, but never engaged in a formal sports program because girls weren’t allowed to play when I was young. I never had a coach and I never heard the expression “practice like you play.” I see the men are all familiar with it. I think it is absolutely on point. I guess we ladies really missed something.

  6. Another nugget; this one to fit in the witness preparation bag. It applies to all your witnesses who will be cross-examined, in addition to your client. Graphic, to the point, and the one line “take-away” to “make your XE the hardest” is clear. Thanks for another instructive article.

  7. Excellent post. Analogies that everyone understands. I am a big fan of Coach Bryant. I have never known him to be anything but 100% correct about everything. The essay also applies to depositions, which have become increasingly important in litigation.