Impeachment, typically with documents, is the single most important tool for cross examining witnesses at trial. In this post, I’m going to explain in detail the steps I use to impeach witnesses. They aren’t hard or complicated, but you need to master them. There is no room for fumbling or improvising when you are impeaching. You need to practice the steps until they are as natural as breathing.

Let’s dive in.

The Prior Statement

Suppose witness Joe Smith gave the following deposition testimony:

Q. What were you thinking when you said you expected the company to meet its sales projections for the quarter?

A. Well, to be honest, I can’t remember exactly what I was thinking when I said that. I mean, yeah, I knew it wasn’t accurate, but I just felt like… you know, I had to say something.

Further suppose, as you might expect, that this is a great fact for your case—a witness admitting they made a false statement. Finally, assume no hearsay exception applies that would allow this deposition testimony to come in at trial before the witness testifies.

To get this evidence in at trial, you are going to need to have it come in when you cross examine Mr. Smith. To do this, you are going to need to ask Mr. Smith to repeat this admission on the stand. At this point one of two things will happen. He will repeat the statement, in which case all is well. Or, he will deny it, in which case you need to impeach him.

The Impeachment

Here’s how to impeach Mr. Smith:

Q. When you said you expected the company to meet its sales projections for the quarter, you knew that statement wasn’t accurate, didn’t you?

A. No; I don’t agree with that.

Q. Mr. Smith, please turn to the document behind Tab 7 in your binder. Do you have that in front of you?

A. Yes.

Q. Looking at the first page of this document, you see that this is a transcript of your deposition testimony dated March 12, 2022?

A. Yes.

Q. Please turn to page 13 of that transcript and look at line 8. Do you see the question that begins at line 8?

A. Yes.

Q. It reads: Question: “What were you thinking when you said you expected the company to meet its sales projections for the quarter?” And then there is your testimony: “Well, to be honest, I can’t remember exactly what I was thinking when I said that. I mean, yeah, I knew it wasn’t accurate, but I just felt like… you know, I had to say something.” Did I read that correctly?

A. Yes.

Q. That was testimony you gave under oath, correct?

A. Yes.

Q. And that was truthful testimony?

A. Yes.

Q. Now, let’s move on to a different topic…

The Breakdown

I’m going to walk through these questions and explain why each one is structured the way it is.

Q. When you said you expected the company to meet its sales projections for the quarter, you knew that statement wasn’t accurate, didn’t you?

This is the setup question. The key thing to this question is that, in relevant part, it must exactly mirror the language of the impeachment material (in this case, Mr. Smith’s deposition testimony).

Why? If you try to sneak it some subtle change to the language you run two big risks.

First, the other side may object when you introduce the impeachment material, and the judge may well sustain it. If a witness’s prior statement doesn’t contradict what the witness said in court, then it’s not technically impeachment and so it’s very likely not admissible.

Second, even if the judge lets it in, the witness on the stand, the jury on its own, or opposing counsel on redirect can expose the discrepancy—and at that point it is you who has taken the credibility hit, not the witness. No lawyer wants to hear a witness say, “Well, but that’s not what I said” and have the witness be correct!

But what do you do if your impeachment material isn’t exactly clear? What if the witness understood your question at the deposition, but on reading it over, the question is ambiguous? What if it seemed clear what the witness meant in the deposition, but now you realize his language was a little vague? Or what if the key nugget of testimony was buried in a longer answer that muddies things up? The answer in these cases is simple: You do not have impeachment material. I’m sorry. It’s a tough thing to realize when you are preparing your cross that the great answer you thought you had in a deposition doesn’t translate into a clean cross question. All I can tell you is—we’ve all been there.

But don’t kid yourself that you have impeachment material when you don’t. Here’s the test to use. Compare the cross examination question you’ve written (and the answer “no”) with the witness’s statement in your impeachment material. If it won’t be completely clear to the judge and the jury that the two directly contract each other, you don’t have an impeachment.

Q. Mr. Smith, please turn to the document behind Tab 7 in your binder. Do you have that in front of you?

This is a logistical question. But it’s an important one. Nothing interrupts the flow of a cross examination like the witness saying, “Hold on, I don’t know what you’re reading from.” Have your documents organized and available to the witness. In this case, the examiner has given the witness a binder before cross. There are other ways to do it, including handing up the document live. But however you do it, make sure the witness has the document.

Note that you are not just telling the witness to turn to the document. You are also asking him a question to have him verbally confirm that he has the document in front of him. This is important because it lets you know are ready to move on and that the witnesses isn’t going to then claim he doesn’t have the document.

It also does something subtler but equally important – it emphasizes your control of the questioning. What do I mean? When you start turning to impeachment material, most witnesses (at least if they’ve been prepared for cross) have some idea it’s coming, and they are ready to fight. A key goal in impeachment is to frustrate this. It’s not that the witness won’t ever get their explanation out – at the very least their counsel can elicit it on redirect. But you want their explanation to come after your impeachment has landed with maximum impact on the jury. For that to happen, you have to keep control of the rhythm of the questioning.

Asking logistical questions achieves this. These are simple yes/no questions that the witness cannot break out of—and if they try to you can easily stop that: “Sir, I’m simply asking you if you have Tab 7 in front of you. Do you?” If they try to fight on that, they will look terrible, and if you ask her, the judge will instruct them to answer yes or no.

Q. Looking at the first page of this document, you see that this is a transcript of your deposition testimony dated March 12, 2022?

This is another logistical question, but it also establishes what the document is that you are going to use to impeach the witness. There are a few reasons to do this. First, you don’t want to jump right to the page with the impeachment. That’s setting yourself up to be derailed when the witness says “wait, wait, wait, what am I looking at?” Second, to the extent you need it, this establishes the evidentiary foundation for the document. Third, it tells the jury what the document is. Fourth, it signals to the judge what you are doing. By telling the judge this is a deposition, the judge understands you are about to impeach the witness which means she will have the correct frame of reference in mind if the other side objects to something. Fifth, it’s another yes/no question the witness has no easy way to escape, which is good for your rhythm.

A note. Technically the witness does have a way out—they could deny the document is what it appears to be. That’s not likely, but this question is phrased to minimize that possibility. Take a look at it; it’s barely a question. It’s a statement with your voice raised at the end. I suggest you always phrase foundational questions about documents this way on cross examination. If you say, “Is this your deposition?” or even “This is your deposition, isn’t it?”, you run some risk of an obstreperous witness saying “I don’t know. I’m not sure what this is.” By phrasing it as a pseudo-question regarding what the witness sees you greatly reduce that risk. Human nature. It’s just really hard to say “no” when someone says, “You see that this is X?” to something that clearly is X.

Q. Please turn to page 13 of that transcript and look at line 8. Do you see the question that begins at line 8?

Another logistical question – this one gets the witness right to the key impeachment material. This is the final setup question before the actual impeachment. Look at where you are now. You know the witness is exactly where they need to be in the document – they have no way to claim they are lost or don’t know what you are reading. You have established you are in control – you just asked three yes/no questions that they had no way of escaping. And importantly, the jury is now dying to know what comes next – you have built up the anticipation.

Now comes the actual impeachment.

Q. It reads: Question: “What were you thinking when you said you expected the company to meet its sales projections for the quarter?” And then there is your testimony: “Well, to be honest, I can’t remember exactly what I was thinking when I said that. I mean, yeah, I knew it wasn’t accurate, but I just felt like… you know, I had to say something.” Did I read that correctly?

The way this question—the impeachment question—is framed is really important.

It begins with “It reads:” and ends with the question “Did I read that correctly?” By framing this as a reading exercise, you hamstring any attempt by the witness to fight with you or interject their own explanation of the inconsistency.

Once you have decided to impeach a witness, the only thing you care about is getting to read their prior inconsistent statement to the jury. And so, once you’ve read their testimony aloud, you don’t want the jury distracted by a fight between you and the witness. Instead, you want to allow the jury to just take in the impact of the impeachment. You want their entire focus to be on the juxtaposition between the answer the witness gave to your initial question and what you just read out loud to them from the witness’s prior statement.

The beauty of the question “Did I read that correctly?” is that it gives the witness nothing to fight about. It’s just a simple yes/no question about whether you recited English words accurately. Most witness are actually thrown by it—they were expecting a substantive question—and will just say “yes.” But even if they try to fight with you, it won’t work, and they will look petty. “Mr. Smith, I simply asked you if I read your testimony correctly; did I?” Moreover, even if the witness anticipates your question, what can they do? There is only one answer.

A few other points about the impeachment question:

First, take advantage of the fact that you are essentially getting to testify. This is part of the beauty of impeachment, as opposed to admission. You get to read the key statement to the jury. Do it well. Slow down, read it clearly, and give it the enunciation and emphasis that makes it crystal clear what the witness said. Especially the critical part (that's why I bolded it; read it that way!). Also, look at the jury while you read. This is the moment they will remember from your cross. Make it count.

Second, notice how the witness’s answer is prefaced by “And then there is your testimony”. This is a bit of editorializing, but it serves to highlight for the jury that you are about to read the critical part. Look for opportunities like this to underscore critical portions with similar phrases that, without rising to the level of you testifying, give the jury an indication something important is coming up. You’d be amazed what you can do with phrases like “and then you go on to say” or “and next you wrote.” Judges understand that impeachment involves reading, and they aren’t going to mind you providing some minor guideposts, as long as you do it in moderation.

Q. That was testimony you gave under oath, correct?

A. Yes.

Q. And that was truthful testimony?

A. Yes.

These exact questions should be asked only if you are impeaching the witness with prior testimony (as opposed to some other statement), but in that case they are useful because they emphasize for the jury that this was testimony made under oath and that was truthful. What’s also nice about these questions is that, similar to the “did I read this correctly?” question, there really isn’t anywhere for the witness to go with them. They can’t deny they were under oath; you will just impeach them with their oath, which would look terrible. And they can’t deny they gave truthful testimony; that looks awful too.

If you aren’t impeaching with a deposition, there are other “wrap up”-type questions you can use to tie off the impeachment. For example, with an e-mail you might end with – “Those were the words you wrote, correct?” The key is for the question to emphasize that this was in fact the witness's prior statement without giving the witness any excuse to fight with you.

Q. Now, let’s move on to a different topic…

Not really a question, but my point is this – the impeachment is done. Don’t ask the witness to explain; don’t ask them if they were lying then or are they lying now; don’t try to twist the knife. Just move on. Once you have read the impeachment material to the jury (with feeling!) you have done a great impeachment. The damage is done; the jury got the point. Resist the impulse to gild the lily. If the other side’s attorney wants to elicit the witness’s explanation on redirect that’s fine; it almost never works.