How Can a Plaintiff Prepare To Be Questioned By The Defendant’s Counsel?
The plaintiff’s attorney should prepare the plaintiff for being questioned by defense counsel. Typically, the plaintiff will be cross-examined by defense counsel, which means the defense will be permitted to ask leading questions. A leading question is any question that suggests an answer, such as “You weren’t paying attention that day, were you?” This question suggests that the answer is “No, I wasn’t paying attention,” even though that answer isn’t necessarily true.
In contrast, the plaintiff’s attorney will ask the plaintiff open-ended questions, like “Tell me about your focus on the day in question,” to which the plaintiff could say, “I was paying attention.” The first step in preparing to be questioned by the defendant’s counsel is for the plaintiff to do a mock cross-examination with their attorney.
I often like doing focus groups, which is when we bring in people from the community and collect data points on their socio-economic status, beliefs, etc., and present the case as we have it prepared at that time. The goal is to ask the members of the focus group about their feelings and thoughts in order to identify problem areas in the case.
A focus group can provide a lot of great information about a case from unexpected standpoints that might not have otherwise been considered. For instance, I once handled a case that involved a Hispanic who put a hangman’s noose in an African American’s work truck. By using the focus group strategy, we discovered that in Hispanic culture, it is common to hang things on rearview mirrors, like rosaries and beads. The defense’s position was that it wasn’t a noose, but just a cool-looking object hanging from the rearview mirror. Through the focus group, we were able to see the benefit in curbing our presentation of the case and taking this unique understanding into voir dire. As a white male, hanging a noose in a work truck for an African American was clearly race discrimination, whereas a Hispanic might interpret it from a different perspective.
Focus groups really help us understand the holes in our case, and by understanding the holes in our case, we can prepare our client for problem areas and areas of inquiry. When we have a problem area, we try to eliminate it through evidentiary rules, such as motions in limine, which could result in certain evidence not being admitted. If that’s not possible, then we will try to put the bad fact in context. For example, if a client has a past arrest, we will tell the jury that it happened 20 years ago when the client was only 19 years old, and remind the jury that young people sometimes do dumb things. We would then explain that our client has since turned his life around completely, and is an outstanding member of the community. If we can’t get rid of the problem area and can’t put it in context, then we embrace it, accept it, and try to explain it the best we can.
I tell clients that if they can survive my cross-examination, then they can survive anything that the defense is going to throw at them. This is because my preparation is extremely detailed and I drill down what they need to say. This is critical, because once the plaintiff testifies in court, their testimony is locked in, and any deviation from it will kill their credibility and case.
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