“As hard as you work to control the witness, you must work even harder to control yourself.”
—Pat Malone, The Fearless Cross Examiner
Law school may have taught you how to cross-examine a witness and gather witness testimony, but learning how to manage your stress level during cross is a skill many lawyers learn the hard way. Jurors will notice not just your witness’s stress level, but also yours. Conducting an effective cross-examination means remaining in control of your stress signals.
As opposing counsel examines your witness, as you object to leading questions, and as you challenge the defense witness’s credibility, you may notice feelings of frustration, uncertainty, or even panic. There are several schools of thought on how to identify and address these feelings as they arise. One technique, outlined below, comes from Inner Circle member Patrick Malone.
Patrick Malone is an expert at managing stress. He began his career as an award-winning investigative journalist before attending Yale Law School, after which he made his name as an exemplary advocate for seriously injured people. He co-wrote Rules of the Road with Rick Friedman (now available in audiobook), as well as The Fearless Cross Examiner. Both Trial Guides titles are considered modern-day classics of trial advocacy.
Pat will be hosting Fearlessly Cross-Examining the Defense Medical Examiner, a live webinar, on June 13, 2023.
In anticipation of this event, we offer the following excerpt from the titular title.
The Fearless Cross-Examiner: Win the Witness, Win the Case is available in both hardcover and ebook.
Steeling Yourself for the Stress of Cross-Examination
Cross-examination is, at its core, something much more profound than a clash of two brains, questioner versus witness. It’s a stressful, body-and-brain activity that we cannot understand until we know something about the biology of stress and risk-taking—and risk avoidance, too.
All humans have a basic need to reduce stress. One effective way to do that is to take control whenever you can. It doesn’t matter so much how demanding your job is; if you can control the situation, you do much better with stress. High-level corporate executives typically have less stress than mid-level managers, by objective biological markers, because they have more control.
Judges and jurors generally like it when you stay in control, as long as you seem even-handed and fair. If you keep a loose hand on the reins, you’ll do much better, by and large, than if you constantly jerk the bit tightly and fight the witness forever. That attorney, by the way, has lost the battle of perception even if he technically keeps the witness from straying too far from his tightly barked commands.
Jurors who are only paying half attention to the content of the cross can see and instantly judge the context of the back-and-forth. Who shows calmer self-control? Jurors generally see that person as the winner of the cross, as long as the answers don’t blatantly contradict the perception. Who shows more stress? There shuffles the loser of the cross.
One way to reduce stress as a cross-examiner is to just stop, or not even start: “No questions for this witness, your honor.” But unless the witness hasn’t hurt your case, you must do something to undermine the witness or the other side’s case through this witness. When you stand up to do that, you are taking a risk that you will lose the match. And that thought is stressful. Your adrenal glands are squirting out cortisol, and this ancient fight-or-flight response is preparing your body to move, and fast, to either fight like hell or run as fast as your legs can carry you.
But right now your body is moving nowhere. You are in the middle of a courtroom, deciding what to do with a witness whom you now can ask any question you want. You want to venture forth in a way that takes some measured risk (otherwise you will just sit down), controls your own stress, and takes the witness where you want to go. Confronting your own internal demons is a first step to maximizing your returns by getting the right balance between risk and reward. Knowing what the witness will say is one way to stay in control and reduce stress, but that also minimizes your chances of obtaining a surprising, helpful concession from the witness. So one thing I teach in this book is plotting a cross-examination to deal with the unknown and surprising answer.
Stress plays a different, important role in cross-examination—enhancing the memory of the points you score in the brains of the jurors. They may not feel the same levels of stress that you and the witness feel in a hard-fought cross-examination. But bystanders engaged in watching verbal combat feel their own stress, and that’s a good thing for us cross-examiners because stress is the brain’s memory drug. When our hearts begin to pound, our memory centers of the brain kick into work.
Bottom line: a cross that looks stressful, especially for the witness, is a physiologically memorable cross.
Pat will be exploring this subject matter in depth on June 13th 2023, in Fearlessly Cross-Examining the Defense Medical Examiner, a live webinar only through Trial Guides. If this date has passed, purchase the On Demand CLE.
10 Tips to Better Stress Management in Trial
How do we walk the stress tightrope, without making the cross such a low-stress event that we lose its memory-enhancing core? Here are some basic rules for modulating stress and achieving better self-control. These rules make sense when we understand the risk/stress/control balancing act that makes for the best cross-examination.
- Work hard to stay polite. Yes, there are a few times that provocation is so bad that you have permission to drop the politeness and go bare-knuckled. But this happens less than you think. One big reason to stay polite is that it shows control and a lack of stress. When you interrupt, yell, or slam papers— you are showing that you’ve lost control over yourself. You get a big demerit, not because Miss Manners and Emily Post sit in the jury box, but because when you get mad, it looks like you’re losing.
- Don’t get mad. See above. The general rule is this: whoever gets mad first during cross-examination is the loser of the bout. You do have permission to get mad second, but only rarely.
- Keep your tone and volume even. It’s so easy to veer into sarcasm, or pump our volume up to eleven on our internal amplifier when we want to best an unresponsive witness. Those methods don’t work! When the witness grows louder, you grow softer. When the witness gets nasty, you stay even. This will help keep your stress down and show that you’re the winner.
- Stay your genuine self. Some lawyers like to cuddle up to an adverse witness at the start of the cross. “Good morning, Mrs. Cleaver, I hope you’re having a wonderful day,” oozes lawyer Eddie Haskell, with elaborate and phony sincerity. Polite is one thing; obsequious is something else. Jurors know you’re there to undermine the witness, so get on with it. You can do it in a courteous, businesslike way without the fake preamble.
- Listen, listen, listen. You ask a carefully honed yes/no question, and the witness responds with a narrative. You go into a slow burn and don’t even hear the answer, you’re so mad. Finally, you bark: “That was a yes/no question!” The witness responds, “But I was agreeing with you, counsel.” Guess who just lost that exchange? The antidote: Listen to every answer, and build from the answer. Don’t be so obsessed with tight control that you lose track of when you are getting meaningful agreement.
- Embrace risk in measured doses. Throughout this book, I will show you how to take prudent risks in your cross-examinations that will get you much better results than the overcautious, risk-avoidant style that baby lawyers learn. Some level of stress, in you and the witness and hence in your bystanders, is necessary.
- Don’t accuse the witness of lying. Let jurors reach their own conclusions. If it’s obvious the witness is lying, your accusation will add nothing, except to ratchet up everyone’s stress level. If it’s not obvious, you will look bad.
- You can start nice and finish mean, but you can never start mean and finish nice. I stole that line from San Francisco attorney Mike Kelly. When you start mean and finish nice, you expose yourself as a phony. Let the witness give you a reason to turn mean, and it has to be something pretty flagrant, approaching out-and-out perjury. When you start nice, you are calm and in control.
- Hit the reset button when you feel yourself losing control over your own emotions. Ask for a recess, pour yourself a glass of water, or whisper a few words to co-counsel—a timeout of even a few seconds usually works.
- Be aware of your stress level and manage it. Pay as much attention during trial to reducing your stress level as you do to deposition digests and proposed jury instructions. There are lots of reasons for this. For starters, chronic stress is bad for your health in an amazing variety of ways, from your heart to your digestive system to your sex life. But as a cross-examiner, stress modulation is simply an important element for victory, because it makes for calmer, more in-control examinations. Figure out what works for you: jogging, meditation, a few deep regular breaths, prayer, timeouts during trial—whatever it takes to blow off the steam and bring you to calm. And once you’re in that quiet place of mindfulness, you may just discover a whole new level of insight into your work.
Join us June 13th 2023, for Fearlessly Cross-Examining the Defense Medical Examiner. Purchase the On Demand CLE here.