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.
Example #1, from a cross-examination of a defense witness in the Ernst Vioxx trial. The statement from a document is in italics:
Q. [A]t least in the past, you were a defender of VIOXX. That was one of your job responsibilities, wasn't it?
A. I would never have considered or characterized a job responsibility to have been that, no.
Q. I would like to show you, then, your performance review from for the year 2001 . . . This is from January of 2001 to December 8 of 2001, isn't it?
A. That is correct.
Q. And if we look at the overall contribution summary, which is a section to be completed by your manager that should include a summary of your leadership and performance contributions -- do you see that?
A. That is correct.
Q. It says, "Dr. -----'s major efforts -- " Do you see the words "major efforts"?
A. I do.
Q. " -- this past year were focused on defending the VIOXX franchise and building the scientific base for a COX-2 business." Do you see that?
A. I do.
Q. So from your manager's perspective at least for, now, three or four years, going back at least three or four years, we've got you as -- one of your 2 job responsibilities is as a defender of the VIOXX franchise. Fair?
A. I think that is how he describes it here. . .
Q. That was a critical year for your company when it comes to defending VIOXX, true?
A. Again, I personally wouldn't characterize it in that way. . . .
Q. You filled out your own job evaluation form called an Employee Input Form, didn't you?
A. We do that every year. Sometimes the name of the form changes, though. . .
Q. You have a section here called "Planned Objectives." Do you see that?
A. Correct.
Q. In other words, these are objectives that didn't just come up during the year. This is what you were planned to achieve that year, right?
A. Sometimes things do come up during the year and we put them under planned objectives, but --
Q. But for all practical purposes, especially since you see "first quarter" written down here, this number one planned objective for you that year was to deal with this VIGOR study and VIOXX cardiovascular safety, true?
A. That is correct.
Q. And these are your words at this point on how you met these objectives, right?
A. Correct.
Q. These are your words on how you even exceeded the objectives, true?
A. That's what it says here.
Q. So we can see from your own evaluation that, while you didn't use the word "defender," what you, in fact, said is your number one objective for the year was to deal with VIOXX from a safety perspective and to deal with the VIGOR study, right?
A. Well, it is number one on the list . . .
In the second example, also from the Vioxx trial, the witness was familiar with an email he had written, in which he said that a "CV outcome study" was the "only essential study" for Vioxx.
Q. Well, the truth is the essential studies that needed to be done for Vioxx was an outcomes study for heart attacks and strokes. Right?
A. The study that would measure as a predefined endpoint, heart attacks and strokes was an important study for Vioxx.
Q. Not an important. It was, at least in the world of things back in 2001, the only essential study for Vioxx. Wasn't it?
A. It was an essential study to do for Vioxx.
In this example the witness, familiar with the email from which the cross-examining lawyer is quoting, eventually agrees with the leading questions.
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