Sitting for cross-examination is never easy. An executive who is called to testify should prepare extensively with counsel.

When a business executive is involved in a dispute—regardless of whether the matter is in court, mediation, or arbitration—the stakes can be immense and may even include the risk of personal liability. Partners and executives should expect that they will have to give testimony and face the fire of cross-examination. Below are some observations on best practices when preparing to testify.

The Executive And Lawyer Must Have An Open Dialogue

The key to a successful cross-examination is open, honest, and forthright dialogue with one’s counsel. Both the executive and the attorney must communicate with each other to ensure 1) the attorney understands the client’s perspective and aims; 2) the executive communicates all necessary information relevant to the hearing that is not clear from the documentary record; and 3) the executive hears and understands the attorney’s guidance. This may not be as straightforward as it sounds. In stressful situations involving high-powered and accomplished professionals, it can sometimes prove difficult to develop the candor necessary for this type of open dialogue. But the key to a successful cross-examination is coming in with the right energy and developing a connection between counsel and the witness, engendering trust, and giving the executive the confidence to withstand tough questioning.

Honesty Is The Best Policy

Keeping secrets from counsel almost invariably backfires, and it should never be done. It is possible that the executive may have done something embarrassing, or feels there may have been an ethical lapse that they would rather not discuss. Every attorney has a “war story” in which some incredible set of facts came out only at cross-examination which the witness never discussed beforehand, even though there was ample opportunity to review the issue and prepare for it.

Oftentimes, witnesses decide that they will simply accept the risk associated with not bringing up the issue. This is never a good idea. If a topic is relevant to the dispute, the executive needs to inform counsel. There is a reason the attorney-client privilege exists: to foster the open dialogue to handle this exact scenario.

The hidden issue may never come up during a hearing or deposition. But if it does, the attorney needs to be prepared to counter it or explain it. It can be incredibly destructive to the credibility of the witness for opposing counsel to grill the witness over issues for which the witness is plainly not prepared.

Practice A Harsh Cross-Examination

Counsel should practice aggressive cross-examination with the executive. Ideally, the mock cross-examination should be more difficult than the real thing. The best way to do this, and the way to avoid harming the relationship between the advocate and the executive, is to bring in a second attorney to conduct it. This prepares the executive for the style of another attorney as well.

The mock cross should test the executive’s ability to keep their composure and to respond to the weakest parts of the case, providing a chance to work through problematic answers in a safe setting. The executive will benefit from learning the rhythm of cross-examination, and how to provide honest and concise answers.

Do Not Memorize

Oftentimes, executives are concerned about testifying with a script, and answering with all the “right answers.” Similarly, inexperienced counsel often make the mistake of having the executive attempt to memorize certain items to get out on direct or cross-examination. This type of practice should be avoided for several reasons. The executive will stress about saying specific things instead of being relaxed and offering truthful testimony. A memorized script also can cause witnesses to lose their personality trying to remember a specific order of words or important phrases that they think have to get on the record.

Certainly, counsel can discuss with the executive how certain issues should be addressed or where the focus of an answer should be. But it is counsel’s job, and not the job of the executive, to present the executive in the right way and to obtain the necessary and winning testimony.

If the executive fails to say a certain phrase during the hearing, there are two alternatives. If the failure occurs on cross-examination, the attorney can always address the issue during redirect testimony by focusing the executive on a line of questioning that can help clear up the record.

If the failure happens on a direct or redirect examination, the attorney can ask a different but related question that may serve to prompt needed testimony.

At in-person hearings, the attorney can also use other tried and true measures to ethically direct a witness. If a witness has trouble answering a question on direct, or cannot remember certain testimony, the witness can always ask to look at something to refresh recollection, which can prompt counsel to provide an exhibit that will help adduce testimony. The attorney can also interject in between answers with a formulation such as, “I want to draw your attention to … .” The attorney should then follow-up the interjection with the issue they want to focus on. The cues can also be more subtle. While judges differ on what they will permit on direct and re-direct, this type of short commentary to direct the witness is generally-accepted practice.

Such techniques can keep the testifying executive at ease and make the experience less stressful, particularly if the executive is advised in advance that the attorney will lay a good record and provide additional opportunities if anything is missing. This enables testimony from the executive that will have a fluency and veracity that is well beyond what manufactured or “memorized” testimony can ever produce. Consequently, the executive will not have to worry about saying certain words, or the perfect combination of words, because the attorney is there to clean up mistakes.

Prepare Extensively With Counsel

Providing testimony is not easy. Being on the witness stand means trying to convince strangers about the merits of a claim. One is thrown into the fire, and a trained attorney will try to pick apart the executive as untruthful, a scoundrel, or maybe both. The only way through the experience is to prepare extensively with an advocate. Only then may one emerge, less wounded and scarred than the opponent, victorious.

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