A trial lawyer friend recently called my attention to an article by attorney Michael R. Doyen in the ABA litigation section entitled On Breaking Commandments. http://www.abanet.org/litigation/journal/2008_spring.html Doyen, who is a Los Angeles trial lawyer, has written about Professor Irving Younger’s famous talk he gave many times about his ten commandments of cross examination. Younger was an well known national speaker on trial techniques and this particular talk was always well received when he gave it. I had the pleasure of hearing him give this talk, but I’ve also written and lectured about my disagreement with many of his “commandments.” So, I read Doyen’s article with interest and found myself in agreement of much of what he wrote. Here are some reflections about the subject and Doyen’s excellent article.
To start with, it’s my belief that there are very few if any rules which you must always strictly follow in every cross examination and certainly there are no ten commandments about the subject. Every trial has it’s own life and takes many turns which are not fully anticipated. A trial lawyer must be prepared and must be skillful enough to “go with the flow” and deal with what comes up at trial. General ideas about how to do it do apply all cross examination, but specific rules that one must always follow don’t exist, at least they don’t if you are agreat trial lawyer.
As an example let’s look at the most fundamental”commandment” which Younger and countless other lawyers told lawyers they must follow without exception: ” Never ask a question when you don’t already know the answer.” The fact is if you are a great trial lawyer you will find yourself asking a lot of questions during cross examination you don’t know for sure exactly how the witness will answer. Sometimes you find yourself in a situation where the witness has raised an issue that if left unexplored will be an “elephant in the room” for you in front of the jury. Even if you don’t know exactly where opening the door will lead and evenif you have an apprehension the witness has deliberately created the issue, you still need to deal with it. It’s a dilemma you can’t ignore.Sure there are tactics you can use to avoid dealing with it and perhaps avoid asking about it because you are apprehensive about what the answer might be and you don’t know what the witness might say.But, in the great majority of situations the problem is that the jury wants to know about this issue the witness has raised. Or, suppose the witness challenges you with something like “Would you like to know why counselor?” You can come up with some valid responses to put it off, but the reality is the jury expects you to not evade the challenge, but deal head on with it.Suppose you get a totally unexpected answer from the witness that raises an important issue. You can’t just pretend it didn’t happen and hope the jury didn’t hear it. Like a bad smell in the room, it doesn’t go away. You need to face up to it and show the juryyou are not afraid of these events because you client is right and unafraid of whatever they throw at him or her.so you ask the forbidden question “Why?” or you accept the challenge and say “OK, let’s deal with that right now” and get into it, dealing with what follows.
In addition,cross examination, for the most part, should be conducted in such a way you are ready to impeach an off the wall claim or make the answer to the question irrelevant. When you ask “You agree that a manufacturer must never needlessly put the buying consumer at risk of serious harm or injury, don’t you?” no matter where the witness goes with that answer, the jury knows what the answer should be. There are a whole lot of “why” questions that should be asked even though you don’t know specifically what the witness will answer. Often your “why” question is framed as a statement supporting your client’s story and you aren’t that concerned with the answer because the question is really an argument for your case. Hypothetical questions often are an example of a question where you don’t know where the witness might go with it, but you don’t care because the question is an argument for your case. If you are telling your client’s story in cross examination, and you should be, then you need to break Younger’s commandment frequently but with carefully worded and well thought out questions.
Let’s look at another of Younger’s “commandments” which was to “save the explanation for final argument” instead of giving it away during cross examination. That’s a rule which I totally disagree with. I believe you use cross examination as your final argument. We make our major points for our case in cross examination. We use cross examination to tell our client’s story. You have an objective and you have a plan to get there. You”follow the yellow brick road”of your client’s story from jury selection to argument. That means your questions support your story. When you have “scored a significant point” for your case that fact should be made in a way the jury understands and not saved for argument. When you ring the bell make sure the jury knows it, then and now. After scoring the point a statement “so, therefore,…..” underscores the point you have made. It is rare, if ever, you have made hidden point on cross examination neither the witness nor your opponent realizes. The idea that you can suddenly and with great drama reveal it for the first time in final argument is only in the movies. People form impressions and fix opinions as the trial progresses. Once having formed an impression or opinion they are not about to change it in final argument. Persuade as you try the case. Cross examination is when you confront the witness head on and you don’t save anything for argument. Cross examination is when the jury is listening carefully so take advantage of that fact.
I’ve been alawyer for fifty years and when I started there was very little discovery before trial. You found out who the witnesses were when they were called and you learned what they had to say when you heard it for the first time from the witness stand. You learned to stand up and launch into your cross examination after having concentrated fully on what they said and then using your wits,deal with it. Trial lawyers today should be prepared in the same way even with all of the full disclosure we have because you know there will always be surprises and events or testimony you didn’t anticipate. So, we need to have a basic understanding of cross examination tactics and function, but be flexible. With present discovery rules we should be able to craft our cross examination in such a way there is no way out even when you ask the question. So, while Professor Younger gave a very entertaining talk about his commandments, I must respectfully dissent.