The most important thing about cross examination in foreclosure cases

Whether it is on voir dire, which is a limited examination before the witness testifies to determine the legal competency of the witness, or on actual cross examination, the object is to bring out facts that are helpful in making your case or defending your position. When I teach cross examination, I refer to the triad — three things you must do in order to reach your goal. The three things are first to have a simple question with a goal in mind. Second to listen to the answer. Third, is the follow up, because you knew the probable answer and now you want to bring home your point. This applies to every question.

The first requires preparation for trial in which you decide your narrative and then develop the key points necessary to bring the court to the point where the trier of fact (mostly judges in foreclosure cases) joins your narrative. You’ll know if they have joined you or are leaning that way by their ruling on objections, by the questions they ask — and one warning sign that you are losing them is when they ask you for the relevancy of your question. Without preparation and a strong narrative to which you are committed, you won’t be able to answer the question about relevancy and you will have no issue preserved for appeal. You are probably looking to establish a question of ownership of the loan and to establish a question of the balance due, if any. The details on this are left out of this article because the opposition reads this and will be ready for you if we publish the series of retreads that apply to trying a foreclosure case.

Second is listening. This is something that lawyers need to do and is the reason they were hired in the first place. The homeowner is too emotionally attached to listen. They hear but they don’t listen and they don’t understand the significance of the question or the answer. Coming to court with a list of questions is a good idea. But many lawyers and pro se litigants fail because of the difference between hearing and listening. The answer is that most people just hear what’s being said. Others take the time to actually listen to what’s being said. There is a significant and monumental difference between hearing and listening. Hearing means that someone “hears” what’s being said and then translates the message into a meaning for himself. When you listen, however, you also take an extra moment to think about the person who’s speaking. It’s only then that you’ll have a clear understanding of what is trying to be conveyed. And only then can you move on to the third step.

The third step is follow-up. This is often confused with moving on to the next question. But your first question in the triad is merely the set up. The real stuff is in your follow-up because you actually listen to exactly what is being said. If the lawyer for the bank asks if the witness is familiar with the books and records of the Servicer, your objection is going to be leading, lack of foundation, and potentially hearsay. If you don’t object then the testimony comes in simply because you failed to object and thus preserve the issue for appeal. You will be subject to the same objections from the other side if you don’t have your ducks in a row.

So if the witness says he is “familiar” with the books and records, you should ask why, and then follow up with questions directed at how he prepared, how he actually knows (personal knowledge) that there was a loan from ABC, and exactly what he looked at in terms of documentation or computer screens. The answers will surprise you in some cases. Take the time to listen to the surprise answer and pause a moment on what you want to do with it and how you can make that answer serve the interests of your client.

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