On cross examination, however, Lee acknowledged several entries from his Facebook page where he reported frequently “working out” and also playing sports such as basketball, tennis, “ultimate Frisbee,” and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial, which happened to be two days before his final visit with. Dr. Cenac. When asked if he had informed Dr. Cenac of any of injuries he had sustained while playing sports, he stated that he told Dr. Cenac that he stayed “active,” but that he was “not inclined” to tell Dr. Cenac that he was playing on softball teams.
Read commentary about the case, and further examples of social media tripping up litigants, at Goldman's Observations.
Here are a few tips from the new Cross-Examination Handbook, which I posted about in March: Seven Essential Impeachment Cross Techniques--
Assess and adjust. What type of witness are you dealing with? Basically honest? Prone to exaggeration? A liar? Know your case and the witness well enough to be able to adjust your cross-examination approach on the fly.
Lock the witness into testimony. If you don't pin down witnesses to their inaccurate versions of the facts, they're apt to wriggle free later.
Establish a motive. If you are trying to make the witness out to be a liar, you'll be more successful if you establish the witness has a motive for lying.
Paint a picture for the jury. Establish your points fact by fact, allowing the jurors to reach the one obvious conclusion on their own.
Close the exits. After locking witnesses into their own incorrect version of the facts, you also have to bar the escape routes. Try to imagine how you would do it if you were the witness.
Surprise. Don't allow witnesses to know the precise objective of your impeachment until their testimony is locked down and the escape routes are closed.
Visuals and other tangible things. If you can add visual aids to your impeachment, do so, as it makes you more persuasive and aids the jury in remembering.
Source: Cross Examination Handbook, by Ronald H. Clark, George R. Dekle, Sr., and William S. Bailey. The seven points are from the text; the shortened summaries of each point are my own.
While there is no surefire on-the-spot way to sniff out dissemblers, there are some helpful tactics for uncovering untruths.
Liars often give short or one-word responses to questions, while truth tellers are more likely to flesh out their answers. According to a 2003 study by DePaulo, a liar provides fewer details and uses fewer words than an honest person, and talks for a smaller percentage of the conversation.
Skilled liars don't break a sweat, but the rest of us get a little fidgety. Four possible giveaways: shifty eyes, higher vocal pitch, perspiration and heavier breathing. Of course, not everyone who doesn't meet your gaze is a liar.
If you think this advice might be helpful to your deposition-and-trial practice, check out the full article. While not written specifically for lawyers, much of it applies to what trial lawyers do.
Lawyers who are defending depositions (or learning how to to defend depositions) sometimes like a handy list of form objections. If the form objection is not made during the deposition, this type of objection is normally waived.
Here are some typical form objections:
"Vague." The question is unclear. The question might be too long, some of the key words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.")
"Compound." The question is actually two questions.
Example: "Did you find the cancelled check on the ground and take it with you?"
"Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.
Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"
"Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer.
"Assumes facts not in evidence." The question contains a factual statement that has not yet been established.
Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)
"Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.
"Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.
Example: "When you proceeded into the intersection, the light was green, correct?"
"Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.)
"Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.
Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.)
Some common objections that are not to the form of the question include irrelevance and hearsay.
If you'd like to add other objections to the list, please leave a comment. For more information on deposition objections, see my book, Deposition Checklists and Strategies (James Publishing)
One of the contributors, Peter C. John, has an article titled "Cross-Examination and Jury Ego," in which he advises lawyers to "lead but don't feed." In other words, you should aim to paint a picture for the jury which allows them to draw their own conclusion, the one you want them to reach. But you shouldn't make this conclusion too obvious, since the jury's "jury ego" requires it "to find the answer based on their own evaluation of the evidence, not yours."
If you force-feed the jury, it could be counterproductive. For example, you can demonstrate that the witness has changed his testimony time and again, but you shouldn't ask the follow-up, "Were you lying then or are you lying now?" Jurors will get the point on their own.
If you own (or can borrow) the book, check out the article. At the end, John gives some other general tips, including the following:
"If you can score ten points in cross-examination, prioritize and only use five of them for maximum impact."
"Never belabor your point so that witnesses can gather themselves and finally explain an answer."
"Control the testimony by your questions, not the witness's answers, especially with expert witnesses."
"Do not change your personality from direct unless it is an honest disbelief from the testimony or actual surprise. False reactions are obvious to the jury."
In addition to John's article, Your Witness contains another 49 articles from Chicago lawyers, plus an introduction by Scott Turow.