The Illinois Trial Practice Weblog

Cross-Examination at Trial: Just Say No

Cross-examination at trial? Don't do it, especially if you're a new lawyer. That's the advice of one commentary-judge in Litigation magazine, Mark R. McGarry, Jr., who writes, "It must be said that very few new lawyers (almost none) have the skills necessary to succeed at cross-examination."

If you try it, something bad is bound to happen--

• You'll overemphasize the testimony of a witness your opponent has chosen, by allowing a re-telling of his story on cross, then again on direct;
• You'll allow the witness your opponent has chosen to correct any mistakes (or fill any gaps) left over from direct;
• You'll allow the opposing lawyer to correct any mistakes (or fill any gaps) when he continues on redirect;
• You'll make one of those errors that are easy to make on cross, like asking a question "that will ruin the case for you."

According to McGarry, you should think about doing the smart thing, which is to say "No questions," since "you just can't improve your case with your opponent's witness."

Source: "McGarry's Illustrated Forms of Jury Trial for Beginners," by Mark R. McGarry, Jr., The Litigation Manual: Trial, page 123-132.

Related post:  "Another Book to Think About: The Litigation Manual: First Supplement."

Cross-Examining the Liar at Trial: Two Absolute Prerequisites

In the new book, Your Witness: Lessons on Cross-Examination, there is a chapter titled "Cross-Examining the Liar" by Chicago lawyer Dan Webb.

Webb, who has cross-examined scores of liars during his long career, begins the chapter by describing the two requirements that must be present before you even begin to think about trying to take on a liar at trial--

• First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";
• Second,  you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

In one of Webb's examples, he tells of a medical expert who was clearly biased against his client, but whose testimony was so technically complicated that Webb wasn't sure he could make it clear to the jury that the expert was lying about the results of certain scientific studies. As a result, Webb chose not to confront the expert.

Webb also discusses the proper demeanor to use when cross-examining a liar at trial. You should be aggressive--"firm, confident, and assertive." Yet you should never raise your voice, at least not in an over-the-top way. "Anytime I hear a lawyer scream and yell in the courtroom," writes Webb, "then I know the lawyer is a failure."

Related Post: "A Book All Trial Lawyers Will Want to Read."

Related Post from Legal Underground: "Being Dan Webb=Tons of Good Press."

Communicating with Juries: The Well-Placed Pause

There's an article at Winning Trial Advocacy Techniques titled "Adding Impact to Opening Statements" that makes this observation:

One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

Read the full article to learn why, when, and how to pause for maximum effect during your opening statements and closing arguments.

A Book All Trial Lawyers Will Want to Read

There's a new book about cross-examination that's easy to recommend: "Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers," edited by Steven F. Molo and James R. Figliulo.

With a dedication "to all those who enjoy a good courtroom story," the book contains fifty articles about cross-examination, each by a different Chicago trial lawyer.

The book's forward is by Scott Turow, who writes that the book's authors "represent the crème de la crème of Chicago's trial bar." Turow continues: "Their combined wisdom probably means that if you read this book, you will never need to peruse another text about cross-examination."

It's a big claim, but based on the time I've spent with the book, Turow is probably right. As he adds, "[T]hese lessons are taught by the most effective educational means ever devised, a technique at which all great trial lawyers excel--story telling."

Since this is the type of book that's filled with good ideas for weblog posts, expect to hear more about Your Witness on this weblog--properly sourced, of course, so that you'll remember to get a copy for yourself.

Craft a Cross-Examination Using the Witness's Own Documents

Here's a useful way to conduct a cross-examination in document-intensive cases:

• Choose statements from documents associated with the witness that are helpful to your case (e.g., from a witness's internal memo, "our division is weaker than our competing divisions by 25%");
• Put these statements in the order you want to address them in your cross- examination;
• Turn the statements into leading questions, (e.g., "Your division was 25% weaker than your competitor divisions, wasn't it?");
• If the witness disagrees with the statement, use the document to get the witness back on track.

When the technique works, it can be very powerful. After the jump are a few examples.

Tip for Spotting Liars: Ask for the Story in Reverse

According to researchers from the University of Portsmouth, the best way for police detectives to spot liars is to "make the suspect repeat his or her version of events in reverse order."

The claim is made in this article in the UK Times: "Can the suspect tell his story backwards? If not, he's lying," by Michael Horsnell.

Will it work in depositions? I've never tried it myself, but maybe I will.

The idea is that a made-up story is difficult enough to remember in the right order. If asked to remember the story in reverse, the witness is bound to make mistakes.

The technique would seem to work best in a case that involves first, a central, key narrative like a car accident or a work injury and second, a witness who has a strong motive to lie.

Thanks to a reader for the link to the article.

Cross-Examining by Body Language and Tone of Voice

While I warned in a previous post that many witnesses are liars, a more common type of false testimony is overstatement and exaggeration. This sort of "minor" falsification is characteristic of the sort of casual, inexact way of speaking that all of us regularly use in our everyday lives. It's a way of speaking, however, that doesn't translate well when used in a deposition or the courtroom.

Ex: "Before this car accident, I never suffered any medical problems in my entire life."
Ex: "It's impossible to find backups of last year's emails."

For a lawyer wishing to confront exaggeration and overstatement, it's sometimes hard to know how to respond. You can't simply say, "I don't believe you. Please give me the real answer." But you can do something very close. Or, at least, some experienced lawyers can. The trick has everything to do with body language and tone of voice. I know because I've been on the receiving end of such treatment. Even when it's damaged my own witnesses, however, I've always admired the ability of the lawyers who were old and wise enough to pull it off.

How do they do it? It's a matter of demonstrating a complete lack of faith in the witness's answer by, perhaps, raising the eyebrows in a mock expression of disbelief. Then the lawyer repeats the witnesses' last answer but gives it a special spin. "Mr. Smith, do you really mean to tell me that . . . " or "Doctor, certainly you can't mean that . . . ." or "Mr. Jones, I'm certain I didn't understand you correctly. You mean to tell me that . . . " A simpler alternative is to omit the preamble and simply repeat the witness's answer with the prerequisite disbelieving expression and tone of voice. "Smoking isn't associated with lung cancer?"

The approach can also be accomplished in a light-hearted manner. I'll never forget the time an opposing lawyer caused one of my experts to become completely unglued at a deposition simply by chuckling at his answers and repeating the phrase, "C'mon doctor, it's just can't be the case that . . . "

Some witnesses would have become defensive and dug in their heels at questions like these, but this witness was especially susceptible to the mocking approach. It's an approach I try to keep in mind when I'm doing my own depositions. In my notes, I call it the "c'mon doctor" approach. Although experts seems more susceptible to this treatment than fact witnesses--perhaps because experts are more concerned about how other professionals are assessing their credibility--the approach can work on all types of witnesses, assuming they're actually engaging in exaggeration or overstatement.

"Oh, c'mon, Mr. Witness. No medical problems in your entire life? Is that what you really mean to say?"

Of course, questions like these can often be objectionable. They start to become argumentative pretty quickly, for example. But it's easy to simply restate the question after the other side objects. Let the witness answer subject to the objection, then back up a step. This time the witness will know you're on to him. "I'm going to ask my question again. What medical problems did you have before the accident?"

Although it's not always an easy technique to pull off, the method described in this post can be a very effective way of coping with exaggeration and overstatement by certain witnesses.

Videotaping the Deposition of Your Opposing Expert

Some lawyers insist on videotaping discovery depositions of opposing experts. Though it adds an additional case expense, impeachment during the later cross-examination at trial can have more impact using video than just a dry deposition transcript.

Related posts:

1. "How to Cross-Examine at Trial with Inconsistent Statements"

2. "Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First"

Not the Answer You Want? Take Care in Phrasing the Question

From The Psychiatrist Blog comes news that "witnesses are potentially highly suggestible and words are important"--

In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.

In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.

In short, be aware of the connotations of the words you choose. It's an important point not only when you're questioning a witness, but also when you're addressing a jury. Meanwhile, if you're on the other side of the table, be on the alert for objectionable misuses of too much "suggestion." A question about the speed of two cars that had "smashed," for example, would lack foundation if the smashing hadn't yet been established by the witness. The question would also be vague and, perhaps, argumentative.

Thanks to a reader for tipping me off to the post at The Psychiatrist Blog.

Where and How to Stand During Direct and Cross-Examination

Assuming the trial judge gives you the freedom to move around the courtroom, does it matter where and how you stand during direct and cross-examination?

During direct examination, many lawyers recommend standing near the far end of the jury box, which forces the witness to look at the jury when answering.

Is cross-examination any different? According to Steven Puiszis, President of the Illinois Association of Defense Trial Counsel, it's best to move around during cross-examination. That's according to Helen Gunnarsson's "Cross-Examination: Beyond the Perry Mason Moment," in this month's Illinois Bar Journal--

Puiszis says that he paces around the courtroom during his cross-examination so that the witness will look at him and not at the jury. Doing so not only emphasized Puiszis's role as star but also further diminishes the witness's opportunity to gain credibility with the jury through eye contact.

What's the "role as star" business? During cross-examination, the cross-examining lawyer should be the main focus of the jury's attention. It's the complete opposite of direct, when the witness plays only a supporting role. During cross-examination, the jury's attention should be squarely on the questioning lawyer, who asks leading questions to which the witness can only answer yes or no.

To read Gunnarrson's entire article about cross-examination, look here (ISBA members only).