Category Archives: Cross

SOME BRIEF THOUGHTS ABOUT CROSS EXAMINATION

Good cross examination usually begins, not at trial, but with discovery.   This is particularly true in connection with depositions. Much of our cross examination resource involves our depositions. The mistake most lawyers make is that they are not thinking about the jury when they are deposing a witness, they are thinking about motions and the witness. Lawyers tend to think that the witness is the audience but in fact the real audience is a jury which has not yet been selected and that’s where the focus should be.

Some good ideas came out of a 1984 Gerry Spence participation at an ABA  meeting about questioning an adverse witness. It involved a mock trial involving defamation. Unlike most lawyers who focus upon specific questions regarding individual issues, Gerry’s approach was to encourage the idea of freedom of press having a corresponding obligation of fair reporting. His approach involved a big picture story rather than a series of individual points. For example:

Q. You agree that no rights can exist without a corresponding duty? We have a right, to drive down the street but we have a duty not to drive carelessly?

Q. While we have a right to drive we also have a duty not to do so recklessly and injure someone? You would agree with that?

Q.  You would agree, that you have a duty to be fair about  you write?

If  you think about cross examination you probably would agree with these general points:

  1. Develop a theme and stick to it.
  2. Keep it simple
  3. listen to the witness
  4. keep an eye on the jury, the judge in your opponent
  5. Remember the rule: “don’t strike a cane unless you slay him” don’t attempt to “crush” a witness unless you can do it.
  6. Keep a poker face even when you shoot yourself in the foot. However don’t be afraid to laugh at yourself in front of the jury.
  7. Do not ask the judge for help
  8. he who angers you has conquered you.
  9. Have the courage to ask hard questions and be prepared to deal with answers.

As to anger, in October 1985 a newspaper reported that during a trial for armed robbery in Oklahoma City the defendant was acting as his own attorney. Apparently the defendant, Dennis Newton, age 47, did a fair job up to the time the manager of the store testified and identified him as the robber. In cross-examination Newton became so angry and upset that he suddenly blurted out: “I should have blown your (expletive) head off.” Suddenly realizing what he had done he quickly added “if I had been the one who was there.” The paper reported that it took the jury only 20 minutes to convict him of armed robbery.

Then there is the actual example about the importance of simplicity from a  transcript of a trial in Tallahassee Florida where a defendant was charged shooting another man in the groin. The direct exam by the prosecutor went like this:

Q. Ms. Brown you were in the bar having a drink with James?

A. Yes

Q. Tommy Lee entered the bar and came over to where you and James were sitting?

A yes sir, he did

Q he yelled something at James and hit James in the mouth?

A yes sir, that’s what happened.

Q James stood back up and hit Tommy Lee?

A yes

Q and then Tommy Lee pulled out his gun and shot James in the fracas?

The witness hesitated. She glanced up at the judge, look back at the district attorney and then said: “no sir. Just above it.”

 

CROSS EXAMINATION IDEAS

Have you thought about what the possible objectives are in cross examination? Often times we have not thought out the possible avenues we could take in cross examining a witness. Here for example are some of the objectives one might have in cross examination:

  • To establish the witness is not telling the truth on one or more material points.
  • To show that the witness is biased and has a motive for coloring the testimony.
  • To show that the testimony is improbable.
  • To obtain admissions about particular facts.
  • To question the accuracy of testimony by problems of observing, hearing or seeing.
  • To question the qualifications of the witness to express opinions or make observations.
  • To impeach the witness by showing conflicting statements or actions.
  • To question the witnesses credibility for truthfulness.
  • To impact the impression of the witness.
  • To discredit the witness because of bias, prejudice, lack of qualifications or other deficiencies.
  • To obtain helpful or damaging admissions.

Lewis Nizer was a famous lawyer years ago who wrote best selling books about his trials. He used to refer to what he called  “the rule of probability.” He would a attempt to determine what was the most probably and the most  likely version a jury would accept as being true and then work around this trial and in his examination of witnesses. This fits the principle of Occam’s Razor: The simplest explanation is the most likely and is a good way to think about your cross examination.

Elizabeth Loftus is a professor of psychology who taught at the University of Washington in Seattle before moving on to other academic institutions. She did considerable research about the testimony and believability of witnesses. One of her findings was that the more detail the witness has about the event they are describing the more credible they seem. She has written:

“why is detail testimony powerful? Jurors and further a witness who provides details has a good memory of the accident or crime. They also seem to think that the witness must have paid close attention to critical aspect of the events. Also, some jurors may simply believe that people who remember details must be telling the truth because it would be unlikely that they would make up seemingly insignificant details.”

Consequently cross examination about the ability to provide details is important. Her research also established that jurors rely upon the degree of confidence of the witness in expressing the testimony. She found that jurors were far more likely to believe eyewitnesses who were confident than those who were not. The impression the witness makes on cross examination is important. Your ability to undermine that confidence is also important. In a case I tried last year the defendant’s lawyer asked the doctor how certain she was about a key fact she testified to. She answered: “Ninety Nine percent.” I found it interesting that some listeners and apparently some jurors put significance on the fact she didn’t say: “One hundred percent.” The impression of confidence counts.

There was a scandal under President Nixon, known as the Watergate scandal. John Connolly had been secretary of the treasury under President. Nixon and was charged with having taken a $10,000 bride to influence the president to raise federal price supports for milk. The principal witness against him was a Jacob Jacobson, a disbarred Texas lawyer. Connolly was represented by the famous Washington DC lawyer Edward Bennett Williams. His cross examination destroyed Jacobson and Connolly was acquitted.

Attorney Michael Tiger set 2nd chair to Williams and did a reenactment of the cross examination at a seminar. It went like this:

Q. Mr. Jacobson you’re a liar aren’t you sir?

A. No I’m not.

Q take a look at this document. It says “statement of Jacob Jacobson” on the top. That you is that?

A yes

Q and that your signature on the bottom?

A yes.

Q and the 1st sentence says: “I lied when I testified before the grand jury,” doesn’t it?

A yes.

Q so you’re a liar, aren’t you?

Very effective technique. Before John Edwards became a politician he was very successful trial lawyer. In his book Four Trials he describes a cross examination of an expert where the expert was evasive and gave long complicated answers. John had a very straight forward question prepared on a poster and asked him for the answer. He wrote on another paper in front of the jury the witnesses long evasive answer. When he was done, John said: “Would it surprise you to learn that several months ago you were asked that same question in a deposition and your answer was….” and John pulled out a large poster with the answer: “Yes, sir.”

When John put up the next simple question he had printed on a poster the witness again gave an evasive lengthy answer again. Once more, John produced a large poster with his answer at the deposition which was “Yes. sir.” The technique was very effective and attention getting for the jury.

Cross examination is a powerful tool and we should learn to use it right. We tend to argue with witnesses and often over insignificant points, at least in the juries mind. We have a habit of boring the jury with details and focusing on issues that aren’t major issues. The jury assumes the witness isn’t perfect and that everyone tends to exaggerate or fudge with the facts, so if it isn’t a major point or if it doesn’t seriously impact the impression the witness is making forget it. Jurors watch TV trials. They think examinations are two or three minutes long with huge dramatic points. They are not prepared for lengthy examinations unless it is interesting and entertaining. Prepare your cross examination. Try it on non lawyers and be prepared to reduce it to an examination which is meaningful to the jury.

CROSS EXAMINATION OF A DEFENSE MEDICAL EXPERT

Today I’m sharing an excerpt of my cross examination of one of the medical experts the defense called in my last trial. I am sorry the format is not perfect, but transferring it from the transcript to here was a problem. The reason I am showing you this is because it is an example of what I would call a “soft cross examination” of a defense expert on a collateral attack. The point is to demonstrate his bias and lack of knowledge about the patient without drawing obvious conclusions, but leaving that to the jury. The main reason was the demeanor of the witness on direct which did not justify a frontal attack.

The defense position was that the plaintiff didn’t require the amounts we were seeking in economic damages for her future care because she could be weaned off the ventilator which her treating doctor, Dr. Green, had failed to do. In addition, they claimed a tube device, called a “T tube”, their Toronto expert, a Dr. Gilbert, maintained could be inserted which would free her from the need for supportive care we claimed she needed over her life. They also claimed her life expectancy was greatly reduced. As a result the defense said she didn’t need the financial support we claimed of $9,804,374.00.

What was interesting was the fact the jury had asked extensive questions of every witness when they had completed testifying. This is the only witness they no questions for at all which led me to conclude they placed little or no weight on his testimony. Since the jury ultimately awarded close to the exact amount I had recommended in economic loss it would suggest the jury did not place weight on the defense medical witnesses including this one.

EXAMINATION BY MR. LUVERA:

11 Q.Dr. Chestnut, I represent Becky Anderson. Let me give you your deposition.

17 Q. Doctor, I have spent some time looking at your sworn testimony in your deposition in August, and Ididn’t see one word about T-tube in that deposition. Did I miss
20 something?

21 A.I don’t think you did. I wasn’t asked about it then.

22 Q.Oh, you had no opinions about T-tubes or anything dealing with Dr. Gilbert at all at that time, did you, sir?

A. I don’t know if I even knew about Dr. Gilbert at that time.

Q Let’s talk about that now. Let’s make this really clear.You believe that Dr. Green is a good

3 doctor, correct?

4 A. Correct

5 Q. You are in no way being critical that Dr. Green should have done something on weaning that was below the standard of care or which has helped keep her on the ventilator in any fashion, are you?

6 A Can you repeat that again? I’m not sure I understand the standard of care.

Q. Sure. Well, I will ask you. Are you suggesting that Dr. Green’s efforts at weaning have somehow kept her on the ventilator when she could have been weaned off?

A. No.

18 Q. Did you read his trial testimony about his efforts at weaning that he told this jury about?

A. Yes, I did.

Q. Did you see that his efforts at weaning, he said, had not been successful. That he was — he had a glimmer of hope, and he was continuing to work on it. Did you accept that as being valid testimony from him?

A. Valid, but I was a little puzzled because when I went back and looked at her actual ventilator settings, there has been some weaning. So her ventilator settings had changed more than I thought that testimony reflected.

1 Q. That sounds like you think Dr. Green missed something that you picked up; is that what you are saying?

3 A. No. I’m saying that when I looked at the ventilator settings Yes.- that they went from an assist control to a pressure support, and that maybe he doesn’t regard that as much weaning or I don’t know that he was asked percentages or whatever, but the ventilator has been weaned in part from a year ago until now.
4

5 Q. But would you expect the jury to accept the testimony of Dr. Green regarding weaning efforts and its success, since he’s the one who is treating, and you have never even seen this patient?

6 A. Sure.10

11 Q. Okay. Now, as far as getting her off the ventilator, and I’m going to come back to this, to spend the day free from the ventilator, and then have some ventilator at night. This woman was in the Harborview hospital for 5.5 months.You knew that, right?14

15 A. Yes.

16 Q. And they did not get her off the ventilator during that time, right? Correct20

21 A. She has been in — on a ventilator ever since this fire in her throat, correct?

22 A. Yes.

Q. And you believe her doctors are competent, qualified physicians who have her best interests at heart?

A. Yes.

25 Q. And if they could get her off the ventilator surely they would try to do that, right?

A. I think they are trying to do that, yes.
24
Q. Let me ask you this question, and I hope you are biased about it, I got the impression from Dr. Gilbert that maybe doctors in Spokane weren’t as qualified as doctors somewhere else. Do you think that Dr. Green, and yourself, and other doctors in Spokane are qualified physicians in the state?

A. Sure. We don’t have some of that specialty expertise that other specialized centers do, but you bet I think they are.

Q. You didn’t get to see that two and a half minute video, did you?

A. I was shown a video before my deposition that was — and I don’t remember for sure. But I think it was titled a day in the life of her, something like that, which was a video of her at the bedside where they were — they had her stand up and — so it was a brief video that I was shown of her at the nursing home.

1 Q. With regard to the people that you say you had off of a ventilator at night, have you ever had one burned the way Becky Anderson was burned in this airway fire?

4 A. No. I’ve never taken care of anybody who had that kind of severe airway injury.

Q. Will you permit me to ask you about your role here, Doctor. Your practice, as we found, has been quite limited since 2006, correct?

A. Correct.

Q. In terms of this area that you are testifying? Yes.

A. Yeah.

Q. You have never acted as an expert in an airway fire case, have you?

14 A. No. I’m not an airway fire expert.

24 Q. And you have never seen a patient with an airway injury like Becky Anderson’s, have you?

25 A. Nope.

Q. Your testimony in cases has been on behalf of the defendant exclusively? We are the plaintiff. We are suing. (gesturing) They are the defendant.They are being sued. Your testimony has always been for the defendant in malpractice cases, correct?

A. In court, yes.

Q. Well, you have given twenty malpractice depositions as an expert and all of them were on behalf of the defendants, weren’t they sir?

A. Yes

Q. Okay, I think it’s probably obvious, but you have not been asked to consult in this case by any of the treating doctors of the family?

A. No, I have not

Q. Have you been to Regency where she is?

A. I have been. But it has been a long time.

Q. You have never, I think we accept this, you haven’t seen Becky and of course, you haven’t examined her, correct?

A. Correct

Q. And your connection with this case is because the defense lawyers contacted you about it, and are paying your fee for it, correct?

A. yes

Q. Okay, so with regard to the matter of responsibility for care, that, of course, is not something that involves you when you leave and go back to Spokane. The Becky Anderson problem is that of her family and her doctors correct?

A. sure