By Dr. Ken Broda-Bahm:
Let’s say that in trial, your witness will be called adverse and will go through the other side’s cross-examination before getting a chance at your direct. But in your preparation sessions, you should still take them through your direct examination first. That’s what I call the “flipped” order, and in this post, I aim to make the case for this as the better approach. Most defense attorneys and witness consultants will intuitively follow the opposite order: Because your witness is likely to be called in the other side’s case, you start with cross-examination preparation because that is what happens first. But “preparation” does not mean just replicating the conditions of the actual trial. Instead, it means working to make things better by improving witness confidence and ability. For that, I’ve found that the flipped order is more effective.
Let’s back up and consider the problem from the witness’s perspective. When witnesses are called adverse – a common occurrence for professional liability defendants and some other defendants – it can be a pretty big deal. A little like walking into the lion’s den, their first experience of trial, and the jury’s first experience with them, will be in the face of the restrictive, leading, and accusatory style of cross-examination. Their chance to tell their story, for the most part, is going to have to wait. But when it’s your client, you should do everything possible to make that experience as painless and productive as possible. In that setting, confidence matters. A comfortable witness will have a much better chance of making it through cross-examination without giving up too much substance or credibility. So let me share a few reasons why I think the flipped order is more likely to build confidence.