Cross-examination Techniques #3 - Impeachment
The formula to impeach a witness on a previous inconsistent statement
Impeachment is both difficult and straightforward. It's your choice, really. It's difficult if you try to win your whole case by confronting the witness in a ‘make it or break it’ moment. These rarely occur in civil proceedings. It's also difficult if you include ‘what to do with the impeachment’ as part of the technique. This episode will focus ONLY on the actual impeachment. What you do with it, well, that's a whole different episode. Stay tuned for that one.
There are three requirements to set up an impeachment. The opportunity arises when the witness says something today during the cross-examination that differs from what that same witness said at another time, including during the direct examination. So that's the first requirement. There must be a difference between a 'now' statement and a 'then' statement.
The second requirement is that the difference is material. Substantial. Big enough to get riled about. Not you, because you rile easily, but the decision-maker. The witness said mauve earlier and purple just now. Who cares? Let it go unless the precise colour really, really matters.
The third requirement is that what the witness says now is harmful to your case, and what the witness said earlier either helps or doesn't hurt so much as what the witness is saying now. If you prefer the current testimony, why attack it? Let it go, Counsellor.
OK, enough with the setup. Now let's present the technique. Again, there are rules. Follow them or pay the price. The decision-maker will blame you for the failure.
The specific rules are described for paid subscribers, together with the podcast review and a Q&A of an impeachment of Mrs. Donoghue.
Advocacy Club Boot Camp on Substack is a reader-supported publication. If you learn only a few techniques to improve your confidence and performance as a litigator, isn’t that worth the modest subscription charge? Please consider becoming a paid subscriber.