THOUGHTS ABOUT CROSS EXAMINATION

THOUGHTS ABOUT CROSS EXAMINATION

What are the goals for  cross examination? As a generalization they might be summarized as was done by Paul Stritmatter in his article Conducting Cross-Examinations https://www.plaintiffmagazine.com/recent-issues/item/conducting-cross-examinations  Paul wrote:

“Wigmore said that the goal of cross-examination should be to “soften the impact of a witness by confrontation.” Persuading the fact finder by softening the impact of the witness may take many forms, including:

Forcing the witness to admit certain facts or agree with certain basic principles;

•  Destroying all or a portion of the testimony of a witness;

•  Discrediting the witness personally;

•  Separating falsehood from truth;

•  Separating hearsay from actual knowledge;

•  Separating opinion from fact;

•  Eliciting contradictions, modifications or retractions of material testimony;

•  Discrediting the witness because of bias, prejudice or perjury;

•  Destroying or weakening the jury’s favorable impression of a witness;

•  Establishing that the witness is lying on one or more material points;

•  Showing that the testimony is improbable or that the witness has a lack of knowledge, lack of opportunity to know or lack of opportunity to observe;

•  To impeach a witness by showing that he or she has given a contrary statement at another time.

The technique for cross depends upon the witness, the issues and the style of the cross examiner. Jim Purdue is an outstanding trial lawyer in Texas. He wrote an article The five Question Rule: Cross examination Simplified” https://www.law.uh.edu/blakely/story-telling/19%20-%20The%20Five%20Question%20Rule-Cross%20Exam%20Simplified.pdf

Here’s what he said: “Within the first five questions, the attorney should communicate to the jurors what subjects will be covered, what will be accomplished during further cross examination and what is expected from the jury.

What I believe is universal in all our plaintiff cases is applying betrayal vs negligence as the cause of the injuries. If that is the goal, cross examination to establish it might be required. As examined in an article by an Oklahoma trial lawyer https://www.oklahomacriminallaw.com/The%20Needle%203-23-13.pdf

“Spence says that the theme in every case is betrayal. We have all been betrayed we have all felt the emotional sting from a betrayal. It hurts and because of the pain we are angry when we are betrayed. If we can tap into betrayal we can use that emotion for us. What Spence is doing is taking a powerful emotion that he knows is present in every person and finding a way to tap into that power and use it to his advantage. This is what is behind Paul Luvera’s statement that “experiences trump facts every time.” All experiences contain facts, but an experience has an emotional aspect to it. Once we find a way to bring the juror to relate to our case through their experience we have plugged into the emotional aspect of the juror. Luvera talks about in jury selection that we should be looking for jurors whose experiences will cause them to relate to our case. Betrayal will always be there.”

Gerry Spence’s approach to cross examination is unique as outlined in his talks and his book. He says:

According to Spence the best place to win or lose a case is in cross examination. In his book  How to Win Your case. He writes:

Cross-examination is simply storytelling in yet another form. Cross-examination is the method by which we tell our story to the jury though the adverse witness and, in the process, test the validity of the witness’s story against our own.” [Spence, Win Your Case, at 169] [“When the lawyer gets up to cross-examine he should have a significant story in mind that he wants to tell with this witness.”][218] [“Basic cross-examination is nothing more than a true-or-false test administered to the witness, in the course of which our story, as it concerns that witness, is told, question by question, to the witness. It makes little difference whether the witness answers yes or no. Question by question, our story is being told. It’s for the jury to determine whether the witness is telling the truth when he denies the statements contained in our questions. If we took each statement out of our cross-examination and joined them, we would have presented our story for that witness.” Id. at 170]

“[Before we begin the cross-examination, we must have in mind the story we wish to tell through this witness. We have prepared the story for each witness and we’ll not muddle around asking a bunch of meaningless questions in order to hear our own melodious voices, nor will we repeat the questions we heard on direct examination, except where it is necessary as foundation for a well-prepared cross. And, at last, we ask ourselves, do we want to cross-examine this witness at all?” Id. at 218-219

Spence also is an advocate of what he calls “the compassionate cross. He says about aggressive cross examination:

“Witness after witness comes to the stand, and you step up with the tender hatchet and begin to hack away. And when you are through, the witness steps down off the stand, and he is never the same in the juror’s eyes.

But after you have destroyed enough witnesses, something begins to dawn on the jury: This man could do this to every witness. This man could do this to me. Not one single person has taken the witness stand and escaped. And the jurors begin to look at you in a new way. What trick will he use against the next witness? Is he fair? Is the witness lying, or is the lawyer just good at twisting things? A lawyer can lose his credibility by being too nifty with the blade.” [Gerry Spence, O.J., The Last Word 211-212 (New York: St. Martin’s Press, 1997)]

It is not so much that I am not trying to kill the prosecutor that I am trying not to kill myself. I want the jury to know that I am the one who is trying to tell the whole truth. The function of the criminal defense lawyer is to be the jurors’ spokesperson. “Mr. Jones could you help me and the jury understand ________”. Ask the questions that have not been asked that no one else has thought about.

He argues: Cross-examination is simply storytelling in yet another form. Cross-examination is the method by which we tell our story to the jury through the adverse witness and, in the process, test the validity of the witness’s story against our own. *** Our strategy will be to cross-examine the witness with what I call the ‘compassionate cross,’ simply a cross-examination that takes into account that this witness is a decent, ordinary human being facing a moral dilemma. We want to understand him and, before the cross is ended, to speak for him in ways he cannot speak for himself. *** It is rarely productive for a lawyer to attack the witness with an angry cross-examination. Unless the witness is truly a miserable monster, I’m not interested in trying to convert the witness into one, nor to show up the witness as some species of idiot, because in the process the magic mirror always works. Too often I will also be revealed as a cruel ruffian, and in the process of trying to display someone as an idiot, I will be seen as one.22 Gerry does not see the adverse witness as an enemy to be destroyed but as a struggling human being whose motivations are to be revealed. Warrior or teacher?

CONCLUSION

It is unlikely there is one correct approach or technique for the cross examination of all witnesses. Too many possible factors are likely to be involved. However, in general, the following ideas are generally applicable as goals in cross examination:

  1. The plaintiff’s case and cross examination should advance a defendant’s actions resulting in damages as a breach of trust and betrayal of a duty owed to this individual and the general public for the wrong reasons usually related to greed.
  2. Cross examination should advance the client’s story. It should be a modified form of final argument as much as possible.
  3. Credibility is the key issue in the juror’s mind both as to the witness and the lawyer. All aspects of trial are a battle of impression, not logic. Credibility is at the center of our impressions of others.
  4. Jurors identify with the witness, not the lawyer. Lawyer demeanor is critical and treating witnesses with professional respect  is what jurors expect.

Some lawyers believe there are witnesses you should not cross examine. My view is that you should talk to every witness. It might consist simply of saying “I don’t think I need to ask you any more questions.” But, to not examine creates possible motives in juror’s minds, the primary one being you are afraid to question the witness.

I believe undermining the witnesses credibility is the most powerful tool we have on cross examination. While it can be done in a low keyed and professional manner, it should be done assuming the witness has damaged your case.

Lastly, I believe cross examination must be limited to only major points which can be documented if the witness denies them. Nothing is more boring for jurors than long winded disputes over the unimportant or tedious discussion of complicated literature or technical issues. Make the points big ones and quit.

One thought on “THOUGHTS ABOUT CROSS EXAMINATION

  1. Dear Paul:

    I rarely comment on posts; but yours deserves acknowledgment. I have been reading and using your “Plaintiff Trial Lawyer Tips” for years–they are concise, effective, and very practical. One could argue that if a new lawyer read all of your trial tips, it would be a better education than three years of law school.

    Thank you for your reliable insights in the practice of law.

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