Crafting a Cross Examination with Tom Withers

Atlanta attorney Tom Withers shares how he emphasizes organization in his pre-trial preparation to ensure every testimony makes an impact.

At the heart of Tom Wither’s law practice is an emphasis on honesty. Whether trying civil or criminal cases, he tries to give each of his clients a clear roadmap of what to expect – never guaranteeing or overpromising.

“The attorney-client interactions are the bread and butter of what we do,” Withers said. “My view is that I always want to be truthful, candid and plain spoken with my clients.”

It takes detailed organization to communicate clearly with clients. That’s why Withers uses everything from trial notebooks to jury consultants to ensure he has a clear course ahead in every trial.

In this episode, Scott and Withers discuss what lawyers need to do to best prepare before they put a witness up for cross-examination. Withers also shares how to transform a case from a box of documents to a compelling narrative.

Preparing For Testimony

Many lawyers may view trial preparation as something done exclusively at their desk. But, for Withers, it’s a priority to ensure everyone feels prepared – including witnesses.

Withers spends hours upon hours with his clients preparing their testimony for deposition and then at trial.

“That means going over the record so that you as a lawyer have a good idea of what they say,” Withers said. “And then the testimony breathes life into those records.”

One of the best things a lawyer can do is spend the time with the documents of the case. Withers believes it’s important that lawyers learn to distill those documents down into something a jury can understand.

“I would be completely happy as an AUSA with a box of documents reviewing those with an FBI agent and distilling down the ‘hot documents’ that we thought we needed to have organized. You learn from those documents what the essence of your case is.”

Once it comes to trial, Withers uses his own special strategy to ensure he hits every mark while examining a witness. He outlines both his direct and cross examinations into ‘chapters’. One chapter may be ‘background information’, another ‘offense conduct’.

Before he begins cross examination, he organizes the chapters into separate folders in front of him. In each one of them, he writes out every question he wants to ask and the answer he wants to get out of that question.

If any answers strike Withers as inconsistent, he’s able to correct the record right then and there. “In state court, you don’t have to lay the foundation for cross-examination for prior inconsistent statements like you used to. So, you’ll bash that witness with the prior inconsistent statement right off the bat when they veer from earlier testimony,” he said.

Withers emphasized that each lawyer will have their own way to prepare. You may not need to write out every question, but you should work to find out which organizational method will work best for you.

“This is just what works for me,” Withers said. “I find it an effective way to conduct cross-examination.”

Using Demonstratives To Your Advantage

It’s important to make sure any exhibits or demonstratives you bring forth for the jury are clear, not distracting. Withers works with a consultant to ensure each exhibit runs smoothly.

“It takes a lot of work and effort, but it’s very very effective to be able to play or display a snippet while you are in trial,” he said. “It’s important to be able to use those documents for cross examination and hit the witness with their prior testimony or prior statement immediately.”

Technological difficulties can often derail these exhibits and therefore slow the momentum of a trial. But, Withers says lawyers need to be prepared to move forward.

“You’re always going to run into a technological issue, even when you’re well-prepared,” he said. “Instead of looking disgusted and sitting there waiting for something to go on, you have to be willing to move easily to the next topic

Even when it does work, many lawyers do not make a significant record of what a witness is reviewing during a deposition. The result is often a confusing piece of document that is little help when you need it for trial or mediation.

“You’re conducting your examination in a civil deposition with an eye towards that witness’ testimony at a trial,” he argued. “So if you don’t have your witness’ testimony tied to an exhibit, then when you get to trial, and you’re trying to tie that document to this witness, it’s a mess. It needs to be apparent what the witness is referring to.”

In order for any examination with exhibits to be effective, you need to be on the same page as whomever is assisting with your audiovisuals. Take the time to go over each exhibit and when they should appear.

“I want the jury to believe that we are well-organized and well-prepared. I think it brings another level to your ability to effectively present your case if you properly use audiovisual or demonstrative aides.”

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