The Spence Trial College conducts regional seminars around the country. At this year’s regional seminar in Washington,the topic was cross examination. The college approach involves: (1) role reversal: Become the witness; identify what the witness is afraid of/devoted to/motivated by and why (2) What is the story that advances your case? Determine what story you want told by: witnesses, client, experts and the juror’s story as well as the universal story.
My talk affirmed this approach and consisted of these steps: (1) Determine your goal for the cross examination topics. It must be consistent with your case story that you want to advance. It must be a major and relevant point (2) break the significant points you want to make into separate categories instead of a running narration. Each individual category to be a complete chapter regarding that topic. One goal and topic to a chapter of your story. (3) identify the documentation you need to support your story – deposition excerpts, statements, reports, literature and the like (4) use role reversal. Become the witness and determine the motives fears and objectives of that witness and (5) on the basis of your role reversal analysis, decide what demeanor you should adopt to achieve your goal in cross examination.
What follows is a brief excerpt to illustrate my approach to cross examination. It is from a five weekjury trial in a smaller county in Washington involving serious injuries from a defective product. Jurors indicated that a significant reason for their $40 Million verdict was the testimony of the CEO of the defendant corporation. The goal for this chapter of the cross examination was simple: emphasize the corporation broke the law by violating FDA rules.
Q. Do you agree that Edwards violated the FDA rules when it destroyed the Japan complaint file?
A. I would say in hindsight that’s no longer our practice. At that time we didn’t believe we were doing anything against the FDA rules, so we saw as a catheter complaint, and we did what we would do with a catheter complaint.
Q. It turns out it violated FDA rules. They told you that?
A. That was something, again, in hindsight that they made a comment.
Q. Hindsight or not, can you tell us whether it’s true that it was a violation of FDA rules to destroy that file?
A. At the time we didn’t believe that there was a violation of FDA rules. They subsequently, during an inspection, said that’s one that we would like you to keep. And we modified our practice.
Q. Here today — what is this date — February 22nd, 2008 –
Q. – – does Edwards admit that it violated the FDA rules when it destroyed the Japan file?
A. I feel like I’ve answered that question.
Q. I don’t think you have. Could you indulge me and answer it, yes or no?
A. I don’t believe — when we acted at that time, we didn’t believe that we violated any FDA rules.
Q Does the FDA believe you violated their rules? Did they tell you that?
A. The FDA said, You shouldn’t do that, you should change your practice, and we did.
This is only a small part of the total examination, but what is not obvious is the demeanor of the witness during this exchange. It was his demeanor that influenced the juror’s perception of him because he was argumentative and evasive throughout even though he had come to the trial to testify that the corporation was sorry for what happened and had sympathy for the injured family. Keep in mind that a trial is a battle for impression and not a battle of logic.