Prepare Now for Your Cross-Examination — Even Though You’re Not Expecting It

Have you ever deposed? Or testified at a hearing or a trial?

If yes, I think you will agree with me here. If not, let me help you: It’s nobody’s idea of fun.

But, you say, “I didn’t do anything wrong. I was just doing my job. And I’m going to tell the truth. Sure it’s going to be time spent in ways that probably are not advancing my business mission, and it’s an unfamiliar environment to me, but I can handle that.”

Likely that’s all true – you didn’t do anything wrong, certainly you are going to tell the truth, and you are savvy and composed enough not to be intimidated by a new experience. But even assuming that, your past actions and communications will be under a more intense focus than they ever have been, and for almost all readers, you will be in an environment that is unfamiliar to you and very familiar to the lawyer asking you questions. For example:

  • You will be sworn in before you testify, “so help me God” and/or “under penalties of perjury.” How often does that happen before you start talking in your daily life?
  • Somebody is staring at you and typing everything you say. (She – and it almost always is a she – is not staring to be rude. She’s the court reporter, and it helps her get a good transcript if she is watching your mouth as well as listening to you.)
  • There are things you are itching to clarify or expand on, but you do not have the opportunity. (And your lawyer will have told you – correctly – that this is not the place to tell your story. You will have been told: Listen to the question, answer the question, then shut up.)
  • The lawyer asking the questions is looking for the words in a past memo, email, text, or conversation that you didn’t get quite right, and intends to use those to your disadvantage as much as possible. The more of those words there are, the longer it will take and the more likely you will start to get a little agitated.

Lawyers who are present for testimony on a regular basis see people who are a pretty big deal in their usual “habitat” get humbled when giving testimony or, at least, not do as well as for themselves and their business as they are used to doing in other settings.

What’s my point? If you do testify someday, it will likely be something important to you and your business. Your business will benefit tremendously if – before there is a dispute – you develop the habit of scrutinizing your own communications as though they were being received by a judge, a jury, or a government investigator. Think of it as insurance for when you are involved in litigation – less expensive and maybe even more effective than the more common form of insurance.  

Nobody will always get every word and phrase exactly right, no matter how careful and skilled he/she is. We’re human, and that’s a cost of doing business. But the more careful you are, the fewer words there will be where you would like a “do over,” the better your testimony will go, and the more likely your business will be successful in your dispute.

I have been doing this long enough that I know some people who have not testified will not internalize this message because they do not expect to find themselves in litigation. It isn’t real enough until it really happens. I get that, and you may go through your career without ever having a legal issue serious enough to require you to testify – congratulations if you do. That is more time you can spend on developing your team, your product, and your customers. 

For those people in particular, I would say that careful communications with an intense awareness of and focus on all potential audiences have benefits besides making you a great witness. Wouldn’t you rather work for the boss who is carefully thinking about his/her communications, both in terms of how effectively he/she is communicating direction, but also with an awareness of the words’ impact on other people in other respects as well? We can all think of at least one boss who didn’t, and almost certainly we do not think of that boss’ lack of communication effectiveness as a good thing for that business.

In my professional focus on representing employers, sometimes this means letting a lawyer who has represented clients in those depositions, trials, and hearings take a quick look at critical documents in the employment relationship – documents that will come up in that future dispute. That lawyer can see and feel how decision makers will react differently to a one- or two-word adjustment to the otherwise very capably constructed document your team has put together. They have seen and heard a certain type of word be used against an employer, and make the small adjustment to likely avoid that happening to you.

I am thinking of a composite client ready to terminate an employee, and I say, “let’s talk for just a few minutes about the situation and let me ‘cross-examine’ you just a little bit first.” This is a newer relationship and the client seems a little offended. A successful business person does not need a lawyer to tell him/her how to terminate a bad employee. When the client asks why we need to do that, I rattle off just a few of the bad case scenarios that result from an employee termination not quite precisely enough thought through – very specifically (without disclosing confidences of course) referencing things observed over the years.

You just do not see it the same way if you have not watched even a well-prepared and smart successful business person squirm through their first experience testifying. So, start preparing now. Hopefully you never need it, but even if you don’t, you will be a great business communicator.

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.

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