Cross-examination Techniques #7 – Controversial Statements

What to do when this witness disagrees with another witness

We have covered impeachment and exaggeration (Episodes #3 through #6 in Cross-examination Techniques). Let’s consider another technique in live-action cross-examination, controversial testimony where witnesses disagree.

This episode was mistakenly distributed on June 29, 2023, so if you think read it already, that may be why.

Controversy is as common an occurrence in advocacy as exaggeration. After all, if all witnesses agreed, why have a trial or hearing? Submit an agreed statement of facts and save the effort! It’s remarkable how rarely trial lawyers argue about the law. Most disputes involve facts, leading decision-makers to speak of ‘fact-suits’ instead of ‘law-suits’.

So, let’s assume witnesses disagree about some event. You are facing a witness, and it’s your turn to cross-examine. The witness has disagreed with what your witness has said or will say. That sets up three possible situations:

1.     The other witness has already testified, so the issue is stark. The decision-maker will consider which witness is testifying accurately.

2.     Your witness has not yet testified, but the nature of their testimony is already a matter of record, so the issue is less stark. Assuming you call your witness, the decision-maker will consider which witness is testifying accurately. If another party will call the other witness, you cannot control this situation and have more freedom to manoeuvre.

3.     Your witness has not yet testified, but you have not disclosed the nature of their testimony. The issue is not in the open yet. Assuming you call your witness, the decision-maker may be asked to rule which witness is testifying accurately. Because you have not yet disclosed the future testimony, you need not lead it should the witness take the stand.

Let’s examine each of these situations and create a strategy.