The View From the Witness Box…

By Brett Twitty

Contemptuous. Rude. Ill-tempered. Surly. Hostile. Yep, that’s me. Or rather, that was me. What a difference a day makes. Admittedly, as a North Carolinian and my mother’s son, such behavior does not come easily, but for our third year students, I will gladly abase myself. Brett Twitty: Difficult as they want me to be. All you have to do is ask.

Yesterday, as part of the final activities of the first of two third years skills immersions (the second one will take place during the first two weeks of next semester), I had the opportunity to play a witness during a cross-examination exercise, and, man, was I a jerk. Over the course of two hours, I made every effort to be as confounding and uncooperative as possible. I was, at least in my estimation, an opposing counsel’s worst nightmare.

This exercise was intended to help the students prepare for the trials in which they are participating today (the capstone event of this skills immersion). As part of these trials, each student will have the opportunity to make an opening and closing statement, a direct examination (their own witness), a cross-examination (opposing counsel’s witness) and a redirect if necessary.

As part of yesterday’s activity, each student (in a small group of ten) had to cross-examine me for three minutes. First and foremost, I was impressed by how well they did. Asking questions on cross-examination is something of an art. In most cases, you really don’t want to give the witness a chance to say any more than “yes” or “no”, and, by and large, the students, through their adept phrasing, were able to restrict me to single-word responses. But I certainly didn’t go quietly into that silent (?) night.

Prior to the exercise, the students’ instructor, Professor J.D. King, encouraged me to give them a hard time, and, if they failed to ask me a “closed” question (the type of query that would engender the kind of response discussed above), to launch into some really long, rambling answer (so they might better understand the error of their ways). I did my best, and, of course, the students made a few mistakes, but that’s fine. This is law school. It’s okay to make mistakes. That’s how you learn.

At the conclusion of each cross-examination, the other students would share their thoughts, impressions and critiques with the examining student. Professor King would then offer his insights and feedback. He would also often ask the student to reprise or retry a certain problematic portion of her examination. In doing so, every student, not simply the student conducting the cross-examination was able to get a sense for the pitfalls of certain lines of questioning, the best way to word various knotty, challenging queries, and the many ways to handle a cantankerous witness.

A great many young attorneys find examination (regardless of form or strip) extremely daunting. It all seems so hard. All the nuanced rules of evidence. The very specific ways in which you have to ask questions. The always unpredictable human element of witnesses, opposing counsel and the courtroom environment.

Further compounding this anxiety is the fact that most attorneys never had an opportunity to do anything like this (unless they participated in moot court, a clinic, an externship or a trial advocacy class) during their time in law school. The first time many lawyers experience this sort of thing is in practice, with real clients, real stakes and real consequences for mistakes. Wouldn’t it be nice if you could begin to develop some facility with these sorts of things during law school so that your first few years of practice might be a little less stultifying? At W&L Law, you can.

Today is the last day of the first two week skills immersion. As of tomorrow, the students will be engaged in a variety of elective, practice-oriented experiences, ranging from real-client work (clinics, externships) to practicum-styled, problems-based courses such as our International Human Rights, Employment Law, Family Law and Business Planning practicums (to name a few). To read more about our new third year, click here.

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