The Illinois Trial Practice Weblog

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).

What to Do When Your Cross-Examination Fails

What can you do when your cross-examination fails not because of your own incompetence, but because the witness is so, well, slippery?

One answer: During closing, talk about what happened. You might even call the witness a "greased pig."

Full details at The Maryland Injury Lawyer Blog.

Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial

Your preparation for depositions will generally be much easier if you think about the ways the testimony will be used at trial. This tip applies to most pretrial discovery: it's almost never an end in itself, but something that will be used later in front of a jury. It's no accident that the ins-and-outs of pretrial discovery often make more sense after a lawyer has witnessed some actual trials. When trials are scarce, even reading trial transcripts helps.

The looking-ahead-to-trial tip can be especially useful for deposing your opponent's experts. If you often rely on outlines prepared by other lawyers, this method will also help you understand why it's important to ask the questions lawyers typically ask when deposing experts.

How do you look ahead to trial? Even though every trial cross-examination differs in its particulars, most cross-examinations of experts at trial cover the following points--

A -- Weaknesses in the expert's qualifications or expertise to render the opinions he's rendering;
B -- The expert's lack of preparation to render the opinions he's rendering;
C -- Bias;
D -- Assumptions the expert is making that will be disproved in your case;
E -- Helfpul testimony from the expert that supports your own case.

I've written about these points before. Working from this list, it's easy to see some of the most important areas you'll need to cover when deposing the opposing expert.  After all, it's the material you'll get in the deposition that will provide the fodder for the cross-examination. If you do the deposition right, you'll know exactly what the expert is going to say ahead of time, decreasing the risks of cross examination.

Keeping the list above in mind, here is an outline of some of the most important points to cover when deposing an expert witness--

A-- The expert's qualifications and expertise (and lack thereof) in the particular area he's testifying about;
B -- What the witness has done (and has not done) in order to prepare himself to render an opinion;
C -- The expert's past work as an expert witness, especially for the side for which he's testifying in your case, including the income generated from work as an expert witness;
D -- All the expert's opinions; his support for those opinions; and the factual assumptions he's making to reach those opinions;
E --  Points that you will be trying to prove or demonstrate at trial that the expert you are deposing will agree with.

Communicating with Juries: Demonstrating the Order in Chaos

For suggestions about the use of tables, charts, glossaries, and timelines at trial, take a look at "How to Uncomplicate the Complicated," by Michael A. Geibelson and Roman M. Silberfeld (pdf link). Although the articles focuses on California law, most of the suggestions are applicable to any jurisdiction. Link from MyTrialBlog.com.

A Tip for Controlling Opposing Experts During Cross-Examination at Trial

When cross-examining the opposing expert at trial, stick to that old adage--leading questions only. Asking questions that call for either a "yes" or "no" is the best way to keep the opposing expert from giving that self-serving speech that he's just waiting present to the jury . . . and which he will present just as soon as you ask, frustrated at your own inability to elicit the testimony you want, "Well, what is your opinion based on?"

If you did a good job of deposing the expert before trial, your cross-examination won't be as difficult as it might seem. In fact, it should be constructed entirely of questions you have already asked. Consider this basic outline, which will work in many situations--

• Weaknesses in the witness’s experience and qualifications that call into question his authority to render the opinions he gave on direct. 
• Deficiencies in the expert’s preparation to render an opinion. 
• Assumptions the expert is making to support his opinion that will be disproved in your case.
• Admissions the expert made in his deposition that support--
  
  • your facts and theories, and
  • the qualifications, competence, and credibility of your expert and his methods.

Source note: The first paragraph of this post was written after browsing a chapter of On Trial: Lessons from a Lifetime in the Courtroom, by Henry G. Miller.