While watching her father cross-examine a witness in To Kill a Mockingbird, Scout Finch invokes the first rule of cross-examination that most lawyers—Atticus Finch included—learn: "Never, never, never, on cross-examination ask a witness a question you don't already know the answer to..."
But what is a cross-examining attorney to do when he confronts a witness that he has not yet deposed? Notwithstanding the Federal Rules' preference for eliminating surprise witness testimony from trial, attorneys are occasionally called on to cross-examine a witness blind, without the benefit of prior testimony that can be used for impeachment. For example: A true surprise witness may be added to a trial list on the eve of trial; a court may limit the number of depositions that a party can take in the case; a client may ask his attorney to limit the number of depositions taken to rein in pretrial costs; or you may be in an arbitration proceeding, where there is limited, or no discovery.
This article provides some practical tips and principles to make sure that you can effectively cross-examine a witness the answers in advance.
Please click here to read the full text of this article
Originally published in the Spring 2015 edition of American Bar Association's Section of Litigation Trial Practice newsletter, Vol. 29 No. 3.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.