Category Archives: Cross Examination

SOME THOUGHTS ABOUT CROSS EXAMINATION

London barrister Peter Brown wrote a book some years ago entitled “The Art of Questioning.”  In one chapter he wrote: Last summer, a motorcyclist was arrested in Oxford, England, for speeding. The lady prosecutor bore in on the defendant with a curved question:  “Mr. Setright, your motorcycle is capable, is it not, of exceeding the 70 mph speed limit? He answered: Certainly it can exceed that limit. But, the possibilities implicit in that physical ability are it relevant to these proceedings. We are not here to consider what I might have been doing, but for the prosecution to prove, if it can, that I was doing what they allege I was doing. Were it otherwise you might just as well be here accused of rape, simply on the grounds that I have the necessary apparatus.”

As to one’s mental attitude about cross-examination  here are some thoughts  to consider :

    • the late trial lawyer  John Appleman once  pointed out that :” the advocate’s quest is for victory. The plaintiff receives no reward for putting up a brilliant battle but coming in 2nd. The defendant may be applauded even if the plaintiff manages some victory,  but never true for the plaintiff. Cross-examination plays a major role in determining the outcome.”
    • I think the lyrics from Jimmy Buffett’s great song Cowboy in the Jungle  have meaning when dealing with cross-examination. The lyrics read: “roll with the punches and plow straight ahead come what may.” Maintaining a calm exterior when the answers aren’t what you hope for is part of the ability to cross examine correctly.
    • The previous thought is consistent with  baseball pitcher Steve Carlton who said  that he always had been able to put a home run  immediately out of his mind.  He said: “that’s a vital trait for a successful pitcher”
    • On the other hand, discretion is also advisable. There was a sign at the entrance to a mine shaft, where dynamite was being used, that read: “sometimes it’s better to curse the darkness and light a candle.”
    • I think cross-examination does involve what has been called “the 6 P’s.” That refers to the thought that: “previous preparation prevents piss poor performance.””

I think most of us have at one time or another read  Irving Youngers  10 Commandments  of cross examination.  His commandments were:

  1.  Be brief
  2. Never more than 3 points. Two is better than 3. One best of all.
  3. Short questions, plain words.
  4.  Leading questions only.
  5. Ask no question to which you do not already know the answer.
  6. Do not argue with the witness.
  7. Do not permit the witness to repeat his direct testimony.
  8. Reveal the significance of cross-examination in summation.
  9. Do not permit the witness to explain.
  10. Avoid one question too many

My own view is that these  generalities are good advice. However,  there are  frequent exceptions  to several of them.  For example,  regarding rule 5, in my experience there are multiple times when  it is necessary or advisable  to ask a question to which you do not know the answer. There are occasions where what ever  answer the witness gives  it will be helpful . There are occasions when the witness has  created a  frame where  to not ask a  “why”  question would  hurt the credibility  of the cross examiner and make it appear he or she is afraid to ask the obvious “why” question. There are other  exceptions  as well .

As to rule 8, I Think it rare  when  it would be wise  to conceal  the significance of the cross examination and wait  until summation. The rare exception might be where  there is something significant  in the exhibits  that  will be dramatic  if  brought out  in summation. In the great majority of cases,  the lawyer cross-examining the witness  should spell out  the significance  of  the   questions and answers during cross-examination.  Cross-examination is after all a story – your client’s story.  Furthermore, the best time to argue your case is through your questions during  cross-examination.  Often hypothetical questions  can serve  as effective summation.  making sure the jury gets the point  during the cross-examination. Drawing attention to the significance of answers during cross examination makes far more sense to me than hoping the jury will remember  cross-examination  days later  during  summation . The drama of the moment will be lost than anyway  in most cases.

As to rule 9,  one should  maintain appropriate control  over the witness ,  but it is unlikely,  in today’s  trials  that the judge  will not permit  the witness to explain.  Even if  the judge doesn’t let the witness explain  lawyer often looks like he or she is trying to  conceal  or  is afraid of  the answers.  It is more commonly true that the lawyer  should be prepared to deal with the explanation  at the time. After all, it is called  cross-examination  for a good reason .

William  L.  Dwyer was a great trial and  and outstanding  federal judge in Seattle .  He was  of the old school  who  accepted a variety  of  cases to be try,  but he was particularly gifted  in the area of  anti- trust litigation.  Bill was  also my friend .  One year,  we conducted  a several day  legal seminar  for trial lawyers  at the University of Washington  and  he offered  some rules for cross examination . They included:

  1.  don’t cross-examine at all  unless you gain something by .
  2. be brief
  3.  be fair
  4.  don’t argue with the witness
  5.  keep deposition impeachment to a bare minimum
  6. don’t asked the judge for help
  7. use plain English – short words are best.
  8. Use leading questions
  9. Don’t gild the lily
  10.  listen carefully to the answers

I think Bill’s last rule is the most important rule of all. In all aspects of trial, especially during jury selection, lawyers commonly make the mistake of really not listening to the answers. To make real contact with a juror you need to totally concentrate on what they are saying while they are saying it. In cross examination we too often are focused on an outline of questions we want to ask and miss significant statements witnesses make. We quickly move on with our planned cross examination and a golden opportunity is missed.  Let’s all resolve to become great listeners as part of being great trial lawyers.

 

 

EXAMPLES FROM TRIALS INVOLVING APARTHEID

I have been reading a book written by Martin Meredith Nelsen Mandela. One of the chapters deals with the arrest of dozens of South Africans who were resisting apartheid. Charges of conspiracy against the government had been filed against 156 defendants. Vernon Berrange was one of the defense lawyers. His opening address is a good illustration of the need for us to elevate our case above just the interests of our client and demonstrate how it impacts a far more important principle or the community. He started off by saying:

“What is on trial is not just the individuals but the ideas they openly espouse. Not only will the accused defend these ideas; they will show that they were the victims of political kite flying by the government to see how far it could go in stifling free speech. This trial has been instituted in an attempt to silence and outlaw the ideas held by the accused and the thousands whom they represent. This is no ordinary trial but is rather a battle of ideas between those who want equal opportunities and freedom of thought and expression for all races and those who sought to confine the riches of life to a minority.”

A couple of examples of cross examination  were entertaining. Berrange on cross examination demonstrated that an expert witness produced by the government had lied about being a university graduate and a lawyer by forging his certificate and practicing fraudulently. He said to the witness:

Q.  When did you last do an honest days work?
A.  Ican’t remember.
Q.  You have lived a life of lies and deception.
A.  I cannot be able to check that.

Another expert witness was called. A professor of Philosophy at the University of Cape Town. He testified as an expert on communistic writings and speeches. He examined speeches made by the defendants and described them as being communistic. On cross examination Berrrage read  a series of  extracts of statements and asked the witness to tell him whether they bore evidence of communist tendencies. The first concerned the need for worker cooperation. Communistic said the witness without hesitation. The lawyer disclosed that the author was a former Prime Minister of South Africa. Then he read  two more extracts. Again, the witness declared them to be clear evidence of communistic speeches. The lawyer disclosed that one was Woodrow  Wilson and the other Franklin D Roosevelt, both former U.S. presidents. The climax came when he read a passage which the witness described absolutely as being communist “straight from the shoulder.” With some glee Berrage pointed out the person who wrote it was the witness himself!

THOUGHTS ABOUT CROSS EXAMINATION OF EXPERTS

Often we find ourselves most apprehensive about one kind of cross examination – that of experts. Usually it’s because we have learned from experience that this class of witness rarely is there as an objective scientist or qualified expert. Rather, they see their role as co-counsel to the lawyer who hired them. An advocate for the side that paid paid them to become an expert. When you combine that attitude with experience in being cross examined, certain tactics are often developed by the expert to evade being totally candid or  even responsive to the question. For this kind of  expert witness it is rather  like a contest or  game. If you add to that a  witness who has an ax to grind, for example a doctor who believes all medical malpractice lawsuits should be eliminated as an attack on the profession, you can also have a witness  who believes the ends justify the means. Honesty and objectivity are not ethical standards  they adhere to  when testifying. Certainly there is no formula or secret code book that will tell you how to cross examine every expert. There are, however, some general principles worth considering. Here are a few.

1. Do your homework  If there is one kind of witness you must prepare cross  examination for it is the expert witness. You usually have their deposition in your case. It must be studied and outlined for helpful testimony. That means being prepared with the statement, the page and  the line number. It also means a video clip of  the statement, if  the deposition was video taped, saved  in a way that allows it  to be played immediately, without fumbling  or delay. It means having  your copy of the deposition and being  able to provide the witness with a copy,  without having to take the original away from the judge so he or  she can follow along. It also means  collecting any other depositions the witness has given and studying those in the same way. Looking for articles, seminar talks, web material or social media material as well as advertising involving  the witness. It also involves an outline which you follow. One that deals  only with major points and not knit picking.

2.  Cross examination is a battle of  impression & not logic  Whether  you “win” or “lose” the cross examination struggle depends upon the impression you and the witness create. We know that people decide on the basis of  how others look, how the sound, how they are dressed and on their passion as well as their credibility. It’s not about substance. it’s about style. Keep in mind the majority of communication is made non verbally.

3. Be clear, be brief and then stop.  The classic mistake most lawyers make is that the talk to much and too long. That’s particularly true in cross examination. Think in terms of television programs about law and trials. The jurors bore easily. They are particularly paying attention with certainty only two times  during cross examination. When you start and when you finish. Have a good start and a powerful finish. Do not assume the jurors  will understand the point you make unless you say it for them. “So, what you are saying is….” or “that means….doesn’t it?”  Do not save points for explanation during final argument. As appealing as the idea that you can make some dramatic point in final argument, the fact  is that in a long trial it is too late. Make your points clear to the jury

3.  The general goals of cross examination  In my view the single most important goal is to undermine the credibility of  the witness. If you do that, it makes no difference what opinions they  express. Goals include (a) bias (b)  self interest (c) inconsistent testimony with evidence (d) with previous testimony (e) with common sense and (f) failure to be fully informed  about the facts.

4.  Stay focused  Nothing is worse than the lawyer being distracted and diverted  from the theme or issues  in the case. Keep a big picture view of the case at all times and avoid chasing after minor distractions or issues. Concentrate on a few big points. Think of using a rifle and not a shot gun. Have a consistent theme you stick with. Use leading questions. Keep a calm demeanor and never show panic or fear. Remember, there are times when the witness  says something that you must follow up on even if  it requires a “why” question or leads to  areas you are uncertain about. If  you know your case and you are prepared you should be able to do this without fear of serious damage to your case. The failure to follow up on something the witness says can be seen by the jury as the witness was  right and the lawyer was afraid to go into it. This only applies  to major points  however.

5.  The five steps in preparing your cross examination Here is a five step plan  for  preparing cross examination of the expert:

(1)  Determine your objectives & make them major ones. Know exactly what you want to establish and why before you start

(2) Organize back up for each objective. Have your document or  impeachment ready and immediately available. Be sure you are prepared for a denial or attempt to evade with back up that isn’t just arguing

(3) Divide your objectives into separate sections. Have each section a complete package with your approach and your documentation

(4)  Organize your objectives by priority. Have a strong start and strong finish. Determine which points are more important than other  ones. Be prepared to discard sections if needed.

(5) Organize your total cross examination as it were dividers in a notebook. If stored in an I-Pad or computer or notebook, have it arranged so you can see an outline of the entire cross examination and have the ability to skip to another section at will. Have your backup documentation immediately available in an organized manner.

Whole textbooks and many of them have been written about this subject so this is only a brief outline of ideas. Good luck.