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CROSS EXAMINATION STRATEGY: Can You Explain an Answer While Being Questioned by the Opposing Attorney?

"Mrs. Jones, just answer the question 'yes' or 'no'," the opposing lawyer tells you.
"But I can't answer just yes or no," you reply.

"Fine. I'll ask you another question..."

"On January 1, did you see my client in his office?" the defense lawyer asks you.
"Yes," you say.
"Did you fill out the form asking you for your chief complaint?" he asks.

"Well, I need to explain...the first form didn't have the chief complaint..." you start to say.
"Well, I couldn't answer your question without giving you an explanation. You see in his office..." you continue.

"MRS. JONES! I ONLY ASKED YOU A QUESTION THAT CALLED FOR A YES OR NO ANSWER. Can you answer my last question with just yes or no?" he wants to know.
"Well, not exactly," you reply.
"Ok, then I'll ask another question," he says.

In this scenario, you're being cross examined by the defense lawyer.
You sued your doctor for medical malpractice and your case has finally come on for trial.
Your attorney has spent the morning asking you open-ended questions that allowed you to explain everything to the jury.

It's now time for your cross examination.
That's the high point for any trial.
That's where all the drama is.

If the defense lawyer is any good, he's going to ask you to promise him a few things.
"Mrs. Jones, I'm going to ask you a series of questions that only call for a yes or no answer. If you can answer yes or no, do you promise just to answer yes or no?"
In order to appear fair and reasonable, you will likely say "Yes."

"If you can't answer my question yes or no, will you promise to let me know that you can't answer my question yes or no?" he asks.
"Sure," you say,  believing that this is going to be easier than you thought.
"If you can't answer my question, do you promise to tell me you can't answer my question, without giving me any explanation?" he asks.

Again, you want to appear reasonable and say "Sure."
"And, if you don't know the answer to my question, do you promise to simply tell me you don't know the answer?" he asks.
"Yes, of course," you assure him.

With these assurances tucked away now, he begins his cross examination.
If he's any good, he's going to ask you very short, leading questions.
Questions that ONLY call for a yes or no answer.

Actually, rather than two possible answers, there are actually four answers you could give to any question on cross examination.

  1. "Yes,"
  2. "No,"
  3. "I don't know," or
  4. "I can't answer that question the way you asked it."

There is no room here for you to explain anything.
You may feel the need to explain an answer.
You may feel the only way the opposing lawyer and the jury will understand your answer is to fully explain it.

If you try to explain, you will often look unreasonable.
You will have broken your promise to the defense attorney.
It will look as if you're trying to get something past him, just so the jury can hear it.

Your lawyer will likely tell you that if you have an opportunity to explain your answer, then go ahead and do it. Do it quickly.
A smart opponent will try to cut you off and challenge your explanation.

"Well, yes I saw Dr. Gold on that visit but I told him something and he didn't record it in his notes. Let me tell you why..." you start to explain.
"Well, I wanted you to know why he did..."

"Well, yes, but I..." you stammer.
"Let's go back to that question. Are you able to answer yes or no?"

"Yes, but..."
"Did I ask you for an explanation?"
"No, but that's the only way you'll understand..." you try to say.

The goal of an attorney conducting cross examination is to tell a story.
His clients' story.
One strategy is simply to get you to either agree with his statement or question or disagree with it.

That's it.
Cross examination is NOT the time for you to explain, assuming of course that the lawyer asking the questions is asking short, leading questions calling for an answer to one single fact per question.

Here's what I mean...

"Mrs. Jones, on the day of the accident, you were driving a Ford Mustang convertible, true?"
"You were heading down Main street, right?"
"Your window was open, correct?"
"You were listening to music at that time, true?"

"As you approached the intersection, the light was green, correct?"
"Your foot was still on the gas when you were entering the intersection, right?"
"There were no cars directly behind you, right?"

"It was daylight at the time of the accident, correct?"
"The sun was shining?"
"You were wearing your eyeglasses?"

Each of these questions call for either a yes or no answer. Not one of them call for an explanation. Not one of them ask the witness to explain anything. I'm putting words into the witness' mouth and simply want the witness to either agree with me or disagree with me. It's not a time to argue with the witness. It's a time for me to tell our side of the story and set up the clear conflict between each of our clients.

At the same time, the jury is evaluating your credibility.
Are you being honest?
Are you trying to answer as best you can?

Are you trying to break the rules by interjecting explanations whenever you possibly can so the jury understands what really happened?

To learn more about cross examination, I invite you to watch the quick video below...

Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer