- David Redding
CROSSING TO CLOSE: Hostility
Cross-examination is the first of the Essential Skills that a Litigator must be excellent at to accomplish his Mission.
To be excellent at Cross the Litigator must first and foremost understand and embrace the distinction between the hostile and the friendly witness
To the non-Litigator, hostility invokes the emotions of antagonism, bitterness and spite. But to the Litigator, hostility is not an emotion, it’s simply a status that describes the category of the witness. A witness is a Hostile solely because his interests (whatever they may be) do not align with those of the CL (client)—his attitude has nothing to do with it. The other type of witness is a Friendly, who is a witness whose interests (whatever they may be) do align with those of the CL.
There can be many reasons why a witness’s interests may or may not align with those of the CL. Some (obviously) are pecuniary. But others, many others, have nothing to do with money and may be so deeply seated that even the witness himself doesn’t realize he has them.
Nonetheless, even if they are not obvious to the Litigator or the witness himself, the interests are there—which means that every witness is either a Hostile or a Friendly. There is no such thing as “neutral” witness. Witnesses are human beings and every human being has a viewpoint that biases him one way or the other. Like the concept of work-life balance, the notion of a completely objective person who has no axe to grind is a rainbow-crapping unicorn. In some cases the axe may be very small, but everyone still has one.
As a result, the Litigator should view the interest of every witness in the way that a golfer assesses wind on the golf course. It is either fully at his back (in which case it’s helping him) or at it’s not fully at his back (in which case it’s hurting him). In terms of golf shots and Cross, a crosswind is the same as a headwind—it’s an impediment that must be accounted for.
Although Hostility is a status rather than an emotion, a Hostile witness may also be (and often is) emotionally hostile
The Litigator must prepare for that by understanding that the witness’ antagonism toward him is not personal. Rather, it is the product of the heat produced by the AdCon (adversarial confrontation), which is exacerbated by the witness’ realization that he has absolutely no control over what is happening to him on Cross because the Litigator is holding all the cards. He gets to ask questions that the witness is compelled to answer, without the mild dissembling or evasion that is attendant to non-testimonial conversations. It may be the first time in the witness’ life that he has had his actions and motivations exposed and sharply questioned, and it all happens in front of twelve strangers (sitting ten feet away) whose job it is to assess his credibility.
A Hostile’s antagonism on Cross may be the only defense he has, but it can be a powerful one if the Litigator is not prepared for it, in the same way that a basketball referee must be prepared for the antagonism of a coach who yells at him to manipulate his calls. Antagonism works because confronting hostility does not come naturally to human beings (whether they be referees or lawyers). From the cradle we are conditioned to seek the smiling approval of parents, teachers, friends, spouses and (oddly) people we barely know. As a result, the unprepared referee will find himself subconsciously bending to the will of the antagonistic coach in order to avoid confronting hostility.
Likewise the Novice lawyer. He will bend to the will of the antagonistic Hostile unless he is prepared to confront it with discipline and mental toughness. Over time, after enough failed Crosses, the Novice will develop both. In fact, he will eventually begin to appreciate a Hostile’s antagonism because it is a clear sign that his Cross is having the proper effect.