I don’t cross-examine witnesses. I interrogate them. Let me show you how. To interrogate a witness in deposition or at trial, you must first understand how to cross-examine him. Everyone has their bag of cross-examination rules. Here are mine:

Ask leading questions. The questions direct the answer.
Don’t use a tag (“right,” “correct”) at the end of the question.
Don’t follow an answer with “OK” or “right.”
Make declarative statements in the form of questions.
Use 15 words or fewer. Preferably 10 or fewer.
Avoid adverbs and adjectives. Use strong nouns and verbs.
Use simple words.
Go from general to specific.
Ask only one fact question.
Each fact should be as small, basic, and bite-sized as possible (ask atom-sized questions, not molecule-sized questions).
Each question leads from the last question to the next question.
Exhaust a topic before moving on to another topic.
Exhaust every version of a question.
If in deposition, ask every question you will ask at trial.
If in deposition, ask the ultimate questions. If the answer is favorable, you can ask the same ultimate question at trial.
Never argue. If you face resistance, fall back to a more basic question and keep falling back to questions no one could reasonably argue with.
Listen.
Maintain eye contact.
Create a fast cadence, fast enough to prevent the witness from thinking, but not too quickly to make it difficult for the fact finder to follow or understand.
Delve into the witness’s bias, prejudices, and other issues that undermine their credibility.

Relying on these rules elicits the answers you want — truthful, unadorned, straightforward answers.

So those are the cross-examination rules. They’re mine. You may have your own. I use these because they work. Use what works for you.

The witness, especially an opposing party or expert, has been taught to parry your questions. Typically, they are told the following:

Tell the truth.
Listen. Wait. Answer.
Only answer if you understand the question. If necessary, ask the question to be repeated or clarified.
Slow the pacing of the question — count to two before answering the question.
Only answer the question asked.
Answer concisely.
Don’t volunteer.
The best answers are “yes,” “no,” “I don’t know,” and “I don’t remember.”
Consider answering the question by incorporating the question into the answer.
Don’t guess.
If asked about a document, read it first.
The person asking you questions is not your friend.
Stick to your answers.
Take breaks.

Knowing the rules of cross-examination and how a witness will answer under cross-examination, you are now ready to interrogate. Let’s cover some general interrogation rules:

Learn your witness’s personality. Do they say too much or too little? Are they assertive or passive? Are they confident or afraid? Are they leaders or followers? Are they victims or autonomous? Will they fight every question or agree with you?
Learn how they lie. Create a baseline by asking questions that are easy to answer, and the responses are truthful. What is your name? Your birthday? Your work address? Where do you work? How long have you worked there? What is your title? Study how they answer. Their cadence. Their eye contact. Their facial features. Their body language. How long does it take them to respond? What are they doing when they respond? Each person lies in their own way, but when they lie, they always lie in the same manner. You need to learn as early as possible how a given witness is lying to you. Short of lying, witnesses, by changing the way they answer questions, are telegraphing to you that you’re close to or are striking pay dirt with your questions.
Get them to forget the rules they were taught. You don’t want them to think or pause. You don’t want them to listen and wait. You want them to blurt everything out and forget all the prep they sat through. You do this by starting with innocuous questions quickly. Don’t waste time writing everything down and slowing the pace. Listen. Take only the most important notes, if any. I’ll examine someone for hours and have fewer than a few lines on my yellow pad.
Have a conversation. Yes, you are asking all the questions. Yes, this is as far from an everyday conversation as one can have, but it is, nonetheless, a conversation. You are listening to answers and body language. You are paying attention to every cue. You are not blindly following an outline. Each question you ask is driven by the last answer the witness offered. You are eliciting a confession — admissions that help your case and hurt theirs. It takes time. Patience. And a whole lot of thinking in a real team to ask the questions to secure the correct answers.
Leave your ego at the door. You’re not there to impress everyone with your deposition skills. I Columbo my way through my depositions. I dress down. I come across as a bit frazzled and distracted. I digress on purpose. I offer some information about myself here and there. I fumble a bit. I lay the trap they shouldn’t worry about me. I know opposing counsel have told their clients I do this. Their clients fall for it every time.

Now that I have shared with you my rules of cross-examination, how opposing counsel will prepare the witness, and the general rules of an interrogation, I will proceed to the next step — the rules of interrogation. These rules overlay everything I have shared with you. This is how you put someone in the box.

The interrogation box (whether in deposition or trial) is yours. You own the box. You control everything in the box.
Have a theme.
You dictate the tone.
You dictate the pace.
You dictate the cadence.
You dictate the journey. You decide the outcome.
You are respectful.
You have a polite demeanor.
Start soft.
Listen actively.
Don’t rush.
Show empathy.
Minimize the admission you’re seeking. It’s no big deal, even if it is.
First, understand the witness before committing to an approach to your style of questioning.
You secure any and every admission, no matter how small.
You secure all relevant information.
Use “W” questions — who, what, when, where, how, and why.
You build rapport.
You gather background information.
Use silence when appropriate after an answer.
Create opportunities to “confess.”
Encourage them to say more.
The truth is short. Lies are long. Gauge responses.
Use documents to confirm or corroborate facts.
Don’t allow the witness to think. If you suspect the witness is onto you, switch to an innocuous subject, wait until they let their guard down, and then revisit the line of questioning that triggered their concern.

Study and apply these rules the next time you examine a witness in a deposition or trial. And remember — it’s not simply a cross-examination — it’s an interrogation.

Frank Ramos is a partner at Goldberg Segalla in Miami, where he practices commercial litigation, products, and catastrophic personal injury. You can follow him on LinkedIn.

The post Me And You In The Box: How To Interrogate A Witness appeared first on Above the Law.

Ask leading questions. The questions direct the answer.
Don’t use a tag (“right,” “correct”) at the end of the question.
Don’t follow an answer with “OK” or “right.”
Make declarative statements in the form of questions.
Use 15 words or fewer. Preferably 10 or fewer.
Avoid adverbs and adjectives. Use strong nouns and verbs.
Use simple words.
Go from general to specific.
Ask only one fact question.
Each fact should be as small, basic, and bite-sized as possible (ask atom-sized questions, not molecule-sized questions).
Each question leads from the last question to the next question.
Exhaust a topic before moving on to another topic.
Exhaust every version of a question.
If in deposition, ask every question you will ask at trial.
If in deposition, ask the ultimate questions. If the answer is favorable, you can ask the same ultimate question at trial.
Never argue. If you face resistance, fall back to a more basic question and keep falling back to questions no one could reasonably argue with.
Listen.
Maintain eye contact.
Create a fast cadence, fast enough to prevent the witness from thinking, but not too quickly to make it difficult for the fact finder to follow or understand.
Delve into the witness’s bias, prejudices, and other issues that undermine their credibility.