Mastering Blind Cross-Examination

Most litigators fear cross examining a witness they have not deposed. Fear not. In an article entitled "Mastering Blind Cross-Examination," appearing in the ABA's "Litigation News," Mark A. Neubauer writes:

"The easiest way to control a witness is through the use of exhibits. Accordingly, use your documents to weave your testimony on blind cross-examination. What is the witness to do? Deny that he wrote the document? Deny that the document she wrote is a true statement? It almost doesn’t matter what the witness’s response is. What does matter is getting the witness’s own words in writing into evidence before the judge or jury.

For example:

Q: You wrote this letter, didn’t you?
A: Yes.
Q: And when you wrote that “I cannot justify paying so much for senior staff when we are missing our budget,” you believed that to be a true statement, didn’t you?

What is the witness to say? He lied when he wrote it? By reading the statement into the record, you are driving home its content in a far more effective way than by just authenticating the document."

There are a number of other very helpful tips in this piece, including this admonition:

"So throw away those deposition transcripts. Save your clients thousands of dollars of reporters’ fees. Instead, cross-examine your witnesses the old-fashioned way—blindly, which, like Lady Justice herself, isn’t really so blind after all."

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