9 Tips to Survive Cross-Examination at Your Restraining Order Hearing

By Veronica T. Barton, California domestic violence defense attorney and creator of DEFEAT the DVRO

The short answer

Cross-examination tests your story and tries to poke holes in it, so listen to each question, answer only what is asked, and stay calm. Say "I don't know" or "I don't recall" when that is true, correct mistakes promptly, and do not agree to "always" or "never." Most important, when the lawyer asks "are you sure?", say "to the best of my recollection," because that question is the setup to show you are lying.

Why cross-examination matters

My favorite thing to do as an attorney is to cross-examine people. I get the other party or the other party's witnesses on the stand and try to demolish them and point out their lies, inconsistencies, and problems with their testimony or their story.

In this post I will teach you how to survive and even win in cross-examination. When you are cross-examined and asked questions, your story is being tested, and the lawyer is trying to poke holes in it. If you and your story are impervious to holes, that is how you convince the judge, the jury, or whomever you need to convince.

This applies to every type of case. I am a criminal defense attorney, and I do domestic violence cases and restraining order cases, but I have also tried cases all the way up to first-degree murder. I have also tried civil cases. If you have a case where you may eventually be put on the stand as a witness, this is for you.

Here are nine of my best tips on how to survive cross-examination. I know there are a lot, but if you are in this situation you probably need all the help you can get. People are usually nervous when a lawyer will cross-examine them. Tip number nine, though, is the best one. It gives you the exact language a lawyer will probably use, which is a red flag that tells you what is coming next, and I will tell you how to stop them.

I teach how to handle being cross-examined in Step 3 of DEFEAT the DVRO, my course for respondents who represent themselves.

Tip 1: Listen carefully to each question

That may seem like a given, but make sure you understand the question completely before you answer. If something is unclear, it is okay to ask for clarification so that your response is accurate.

Attorneys often ask bad or confusing questions. If you don't understand the question, it doesn't mean anything is wrong with you or that you don't know what is going on. It is probably a bad question that they made up on the spot.

If you don't know what they are talking about, you might say, "Would you mind repeating the question? I'm not sure if I understood it," or "Are you asking XYZ?" They might fumble a bit and say, "Let me rephrase, let me rephrase," or "I'll strike that question," and move on.

Tip 2: Keep your answers focused

Reply only to what is asked, without volunteering additional information. If you are asked, "Did you send an email to the petitioner on August 1st?", respond yes or no. Don't start talking about what is in the email.

I was watching a restraining order hearing recently while I was waiting for my case to be called. Both sides had witnesses who testified to the opposite of one another. There were two competing versions of events, and the judge had to decide which one to believe. For domestic violence restraining orders, the judge has to believe a version is slightly more than 50% likely. The judge found in favor of the respondent, saying that when the respondent and the respondent's witnesses were asked questions, they responded with simple yes or no answers without adding anything.

Witnesses often think they are being persuasive when they tell their whole story again, go on and on, or argue with the lawyer because they can tell what the lawyer is getting at. That is not persuasive to the judge.

Maybe you are asked something where you wish the answer wasn't yes, like "Did you send an email to the petitioner on such and such day?" You wish you didn't, but you did. Maybe it is not a positive thing for your side that you did it, and it probably isn't if you are being asked about it on cross. When you say yes, you are saying, "So what?" You are not giving that fact any more weight than it deserves.

In domestic violence cases and restraining order cases, one big topic we often ask the petitioner or the alleged victim about is this. There was an incident of abuse, and afterward the alleged victim and the respondent got back together. We will point that out and say, "Isn't it true that you saw him the next night? You went on a date. You sent him a heart emoji."

If you say, "Yes, but that's because I was afraid of him," or "Yes, but I didn't realize at the time that what he was doing was abuse," that is much less persuasive than saying yes. The "so what" is implicit there.

Tip 3: Remain calm and respectful

This may seem easy or obvious, but it can be very difficult to do in court, especially if you are talking about personal issues. Your demeanor when testifying is key to whether a judge or a jury believes you.

If you are a defendant or the person who was accused of domestic violence, or if the defense is self-defense, then the opposing party's attorney will try to rile you up. Be prepared for that. It is probably literally in the Word document of their outline for questions to try to rile you up. There is an entire course in law school about how to advocate for your client at trial. If you appear angry, then their version of events will become more plausible. The judge or the jury will be able to picture in their mind's eye you doing exactly what you are being accused of.

Don't let the other attorney rile you up, even if you don't like that person. They are trying to make you seem like something you're not. They say things that are not true, even if they don't have any evidence, just to see if they can get a rise out of you. Know that this is what they are doing. It is in a textbook, and they are probably using a template or something that they learned from another attorney. They are trying to do their job well. It is frustrating, but don't let that ruin your case.

Tip 4: Avoid speculation

If you don't know something, you can say, "I don't know." That is a perfectly valid answer. If you don't remember something, you can say, "I don't recall."

Don't abuse that. If you say "I don't recall" about something that anyone would or should recall, that will hurt your credibility. But if you genuinely don't know, you don't recall, you never knew in the first place, then that is a fine answer. In fact, if you say that, the judge will probably make the other attorney move on.

Tip 5: Correct mistakes promptly

Sometimes we misspeak. If you realize you have made an error in your testimony, whether when you first explained yourself or during cross-examination, it is okay to correct it. It can also potentially add to your credibility.

As an example, you might say, "I mentioned earlier that I left the meeting at 3:00 p.m., but thinking it over, I realized that it was closer to 4:00 p.m., so I wanted to make sure I clarified that for the record." That is a fine thing to say. It makes you sound very reasonable and credible.

Tip 6: Sometimes you just have to say yes or no

Recognize that some questions are direct and require straightforward answers, so don't add extra information. Witnesses often struggle with this.

For example, say you are asked, "Did you call the petitioner on the night of July 15th?" and there are phone records that show you plainly did. Maybe you haven't seen them, but they are probably out there, and the attorney probably has them if they are asking you about this. If you called the petitioner on the night of July 15th, just say yes. Don't explain why you called or what the phone call was about, which is what many witnesses do, unless you are asked.

Tip 7: Be very cautious with absolutes

This is a big one that I don't think many attorneys teach their clients, but I think it is important. A big red flag is hearing the other attorney say "always" or "never."

Remember standardized tests. I remember my parents made me go to a class about how to be good at standardized tests. It is all tips and trying to outsmart the test. If there is even one instance where the statement is not true, and you say yes to "always" or yes to "never," then you are wrong. Then you lose.

If a lawyer is asking you, "You never yelled at the petitioner," or "You always would lock the door," you may think, "Yes, I always would," but not think, "But there was the one time that I didn't." When you hear "always" or "never," I hope you remember this and think, "I shouldn't agree with that. I shouldn't say yes to that. I should say, 'To the best of my recollection,' or 'As far as I remember, that is correct.'" Don't agree outright with an always or never statement.

Tip 8: Be careful with documents

Here is a little secret. It can be very difficult to bring a document into evidence on cross-examination. As attorneys, when we want to bring a document into evidence, we have to establish certain things. We say, "I'm showing you what's been marked as Exhibit A. Do you recognize it? What is it? Is this a true and correct copy?" If we have a friendly witness, our client or our witness, and it is a document that they know about, such as an email, they say, "Yes, I recognize this. It's an email. It's a true and correct copy." It is very easy.

But sometimes we can't establish that, which is called foundation. We may not be able to establish foundation with our own client, because maybe it is something like an Instagram post, and we don't have a witness who can help us bring that piece of evidence in. Sometimes the opposing party doesn't know what is going on and is agreeable. They don't understand what we are doing or what we have to do, and they will go along with us when we show them a copy of their text messages that our client brought in.

In a criminal defense trial, I might not want to put my client on the stand. If the text messages are between my client and the alleged victim, I don't have a way to get them into evidence unless you, as the alleged victim, will go along with me and agree about them. Getting them into evidence means showing them to the judge or the jury. Or maybe they are text messages between you and some other person who for some reason isn't available as a witness, so the only way to get them in is through you.

If the other side shows you a document that your side did not produce, one you didn't give over to your attorney, for example, and they ask if you recognize it, don't commit. If it is text messages or an email, how do you know that the other side didn't alter them?

If it is text messages, for example, you can say, "Those look like they are text messages, probably between me and someone else, but I haven't seen this. I would have to compare it to my own messages to make sure it was accurate." If you say that, they will not be able to bring that into evidence. They will not be able to establish that foundation.

Another thing the opposing attorney might do regarding documents, such as text messages, is ask you, "Isn't it true that on July 10th you texted my client," and then state what the text message said. They might try to quote something, and you might say, "I don't recall sending that." You followed the previous tips. Then they might say, "Would it refresh your recollection if you were to see a copy of the text messages?"

In that case, say, "Yes, if I saw my copy of the text messages, it would." They are trying to show you, while you are on the stand, a copy of the text messages that their own client gave them, and have you read it and then confirm and admit whatever you sent.

But that copy that they are showing you would not necessarily refresh your recollection, because it is not your copy. If you were to go to your own text messages, your copies that you know are correct and that you know are unaltered, and review them, that would refresh your recollection. But seeing a document that the other attorney gives you, which says you said something on July 10th, doesn't mean that you did it.

In that instance, you can say, "Seeing my own copies of the text messages would refresh my recollection, but seeing this document that I've never seen before does not." Again, they cannot get that text message in. They will have to move on.

Tip 9: When the lawyer asks "are you sure?", do not give an absolute

This is the most important tip here, and I think it is also the easiest one to master and get right. I hope that this one sticks in your mind.

The other attorney will try to show that you are lying by presenting some other evidence. It may be a witness, usually a third-party witness, or it may be a document that shows something different from something you have already testified to. But to be allowed to impeach you, to show that piece of evidence, or to have that witness come in (and maybe it is a surprise witness), the only way is first to get you to commit.

The exact language they will use

Here is how they do this. If they know what they are doing, they will probably use this exact language, or very close to it. They will say, "You testified to whatever fact it is." That will be the first question. They will ask you about something that you just said, or maybe something you said on a previous occasion when you were under oath, at a deposition or at a previous hearing. Then they will say, "Are you sure that whatever the fact is?"

When you hear "are you sure," or "are you certain," or "are you positive," something along those lines, they are setting up to impeach you. They probably have evidence that whatever you testified to is not exactly accurate. They are gearing up, and are really excited, to trot out that witness, or more likely to show a document to you and to the jury or the judge, to paint you as a liar. Maybe, if you have been telling the truth the whole time, you got something wrong. Maybe you misremembered.

When they say, "Are you absolutely sure?" or something along those lines, again, they are looking for an absolute. If they do not get it from you, they cannot impeach you. If you answer, "To the best of my recollection, that is correct," or "As far as I recall," you are not giving an absolute. Generally they will not be able to impeach you if they attempt to.

A jury trial I won

I won one jury trial for my client, and I think we should have won it. It was a domestic violence felony case. It is always difficult in a he said, she said situation. Twelve jurors are looking at my client, a victim is on the stand saying "I was abused," and the testimony of one person is enough to potentially convict you. My job as a defense attorney, in large part, is to poke holes in her story.

I asked her about this. At the preliminary hearing, which is halfway through a felony case, she had testified that she had broken up with my client. After the preliminary hearing, my client said, "That's not true, that didn't happen." He gave me a text message where he breaks up with her. To be fair, they had broken up on multiple occasions, but he did have a text message on the date in question. If somebody breaks up with you, you can't then break up with them. They've already done it. The relationship is already over.

I asked her, "You testified that you broke up with him?" She said, "Yes, I broke up with him." She was mad. She did not know any of these tips or follow them. I then asked, "Are you absolutely sure that you broke up with him?" She said, "Yes, I am absolutely sure that I broke up with him," and even talked about why she broke up with him, which again didn't make her look good.

By saying that, she said exactly what I was hoping for, because I had the text message right there, and I was eager to show it. I saw exactly how the jury looked at her at that point, and I am confident that was the moment we won the case.

Whether my client broke up with her or she broke up with him doesn't necessarily go to the elements of domestic violence, which is what the prosecution has to prove to win and convict my client. But her credibility was destroyed. Immediately after, everybody saw a text that I put on the projector where he breaks up with her on that same day.

To shut me down, she could have said, "To the best of my recollection, I broke up with him, but it was a really stressful time. I think we both broke up with each other a few times at that point." I wouldn't have been able to use that text message, and then I don't know what would have happened in my trial.

Frequently asked questions

What should I say when the other side's lawyer asks "are you sure?"

Do not give an absolute. When they say "are you absolutely sure" or "are you certain," they are setting up to impeach you, and they are looking for an absolute. If you say "to the best of my recollection, that is correct" or "as far as I recall," generally they will not be able to impeach you.

Should I explain my answer if the question can be answered yes or no?

Sometimes you have to say yes or no. Don't explain why you called or what the phone call was about, unless you are asked. When you say yes to something that is not positive for your side, you are saying, "So what?" and you are not giving that fact any more weight than it deserves.

What if I don't know or don't remember the answer?

You can say "I don't know" or "I don't recall." That is a perfectly valid answer if you genuinely don't know or never knew in the first place. Don't abuse it by saying "I don't recall" about something that anyone would or should recall, because that will hurt your credibility.

What if the other side shows me a text message or email I have never seen?

Don't commit. You can say that it looks like text messages, but you haven't seen this and would have to compare it to your own messages to make sure it was accurate. If they ask whether it would refresh your recollection, say that seeing your own copies would, but seeing a document you have never seen before does not.

What if the lawyer tries to make me angry?

Be prepared for that, because they are trying to rile you up. If you appear angry, their version of events becomes more plausible, because the judge can picture you doing exactly what you are being accused of. Remain calm and respectful, and don't let it ruin your case.