## Thursday, July 31, 2014

### CROSS-EXAMINATION TO PRIOR PROBABILITIES

Prior Probability is a term associated with a complex mathematical formula devised by the eighteenth century mathematician Thomas Bayes. You most likely will have to look long and hard to find a simple, everyday-English definition of the term.  I did a quick search of all the usual suspects on the internet (Wikipedia, etc.), and the most lucid definition I could find came from Dictionary.com:

“The probability assigned to a parameter or to an event in advance of any empirical evidence, often subjectively or on the assumption of the principle of indifference.” Here is my homespun definition:  Prior Probability is a common-sense estimate of the      probability of an event made at the outset of an investigation.

For example, the recent book Abraham Lincoln’s Most Famous Case, investigates three accounts of Abraham Lincoln’s Almanac Trial. The most popular story has Lincoln winning the case with a brilliant cross-examination, another says he won it with a brilliant final argument, and the final version says he won it with unethical trickery. Before conducting any investigation to determine the truth of the matter, which version seems most likely based on what we already know about Honest Abe, the author of the Gettysburg Address? That’s the prior probability. At the end of our investigation, we arrive at the posterior probability—what most likely happened? Lincoln’s Most Famous Case investigates these three versions of the story, and renders a verdict on which story has the most posterior probability.

This is a rather lengthy leadup to advancing the proposition that prior probabilities can help us to craft an effective cross-examination. Although it does not use the term, the 1929 book Cross-Examination of Witnesses (by Asher L. Cornelius) describes a method of using prior probabilities in case analysis.
1.      Write a narrative of the case stating the undisputed evidence and the contentions of the parties in the most neutral, nonjudgmental language possible.
2.      Identify the point(s) of contention.

3.      As to each of the points of contention, make a common sense determination which side of the argument seems more likely (has the greatest prior probability). Write down these prior probabilities and the facts which support them.

4.      Draft a cross-examination aimed at emphasizing the prior probabilities and the undisputed facts supportive of the prior probabilities.

Here is one of the examples used in the book:

EXAMPLE CASE ANALYSIS FROM CROSS-EXAMINATION OF WITNESSES

Anderson purchased an apartment house from an owner Baker for \$65,000 and paid \$15,000 down, leaving a balance of \$50,000 to be paid on the contract at the rate of \$600 per month. Anderson claimed that the owner Baker, from whom he purchased the property, misrepresented the facts in this transaction, in, the following particulars:

(a) That the rentals from this property of \$700.00 per month had been reduced so that they were at absolute bed-rock at the time the transaction was closed and that all of the tenants were prompt' in paying same, and that an expenditure of only about \$300 per annum was required for heat.

(b) That the owner represented that all of the apartments were in good repair as to decorations; that the building would easily carry the contract and pay for itself out of the rentals.

Anderson purchased the property, entered into possession and discovered the following facts: ,

1. That it cost him \$250 per month for heat;
2. That the tenants were not prompt in paying rent;
3. That heating plant required \$500 repairs;
4. That the property lacked approximately \$300 per month of paying for itself from the rentals.

Anderson brought suit for rescissions against Baker. The defendant in his answers denied that he made any such representations as above set out. -,
What, now, are the probabilities in this case? The lawyer for the plaintiff, in planning his cross-examination of the defendant and his witnesses should reach the following conclusions respecting the same:

STATEMENT OF PROBABILITIES

(1) Anderson as a purchaser would be vitally interested in knowing what income the apartment produced. Baker, the owner, had that information. Anderson did not. The probabilities, therefore, strongly support the contention of Anderson that he asked for this information. If Baker had given him the actual facts he would have refused to purchase the property. So, here again, the probabilities support Anderson’s claim that Baker misrepresented the income.

(2) Since heating costs of large apartment buildings vary widely, depending upon the efficiency of the heating plant as well as upon the construction of the building, the probabilities are strongly with Anderson when he stated that he asked Baker what the cost would be and Baker told him. If Baker made any representations at all about the heating costs of the apartment, it would have to be a representation consistent with the purchase of the building by Anderson. Had Baker told the real facts, Anderson would not have purchased.

(3) As to the condition of the interior decorations, the individual apartments being all rented, Anderson did not have access to them and he was compelled to depend on Baker for information. Here again a true disclosure would, in all probability, have blocked the deal.

(4) Since the tenants in the building were none of them prompt in paying their rent, and since Anderson naturally would be interested in making inquiries as to their character, the probabilities are that Anderson did inquire and that Baker concealed and misrepresented the real facts.

Since one of the important objectives in cross-examination is to show that the witness is not testifying truthfully, one forceful method of doing this is to show the improbability of his story by emphasizing facts before the jury which render such story improbable. Counsel, therefore, cross-examined the defendant in, this case as follows:

Q. You, as the owner and operator of this property, knew the annual cost to heat this building?
A. Yes, sir.
Q. The heating costs of apartment buildings vary widely do they not, depending upon the condition and efficiency of the heating plant and the construction of the building?
A. Yes, sir.
Q. You had exact information as to what it cost to heat this building?
A. Yes, sir.
'Q. Mr. Anderson, your prospective purchaser, had no information as to what these costs were 1
A. No, sir.
Q. And he, as a prospective purchaser of this building, would naturally be very much interested in knowing what these heating costs were.
A. Yes, sir.
A. Yes.
A. No, sir.

The process described in Cross-Examination of Witnesses is a slightly different method of conceptualizing the analytical process we describe in Chapter 3 of Cross-Examination Handbook, but it uses a similar procedure and arrives at much the same place you would arrive at using our method. Cross-Examination of Witnesses describes a workable analytical mode, and If you feel more comfortable using its analytical framework than ours, by all means do so. Although there is more than one way to skin a cat, the cat ends up flayed no matter how you do it. What Cross-Examination of Witnesses says nothing about, however, is how to go about actually drafting, constructing, and arranging the cross-examination. Chapter 4 of Cross-Examination Handbook fills this void.

## Saturday, July 26, 2014

### IRVING YOUNGER - SAGE OF CROSS-EXAMINATION

Watch Irving Younger Discuss the Ten Commandments of Cross

Whenever we get to the subject of cross-examination in my law school class and I (Bob) mention Professor Irving Younger the students give me blank stares. None of them seem to have heard anything at all about Professor Younger or his famous Ten Commandments of Cross-Examination. Younger began his legal career in 1958 with a brief stint as a litigation associate in a large New York law firm. It wasn’t long before he took a position as an Assistant United States Attorney for the Southern District of New York, a position which he held until his election as a New York City Civil Court Judge in 1968.  In 1974 he resigned his judgeship and began a distinguished academic career as a law professor at Cornell University. Younger also served as a lecturer on the CLE circuit, and his most popular presentation had to be his presentation on the Ten Commandments of Cross-Examination.

Younger was a dynamic, charismatic speaker who always entertained while he was educating. Everyone who practiced trial law from the mid-1970’s through the 1980’s knew and used Younger’s Ten Commandments (his Commandments are discussed in Cross-Examination Handbook along with exceptions to the Commandments). Younger died in 1988. Twenty-first century trial lawyers can profit by knowing the commandments, and there could be no better way to teach those commandments than to let Younger tell you about them himself.

Click here to watch Professor Irving Younger holding forth on the Ten Commandments of Cross-Examination.

## Saturday, July 19, 2014

### Videos of Cross-Examinations

Yogi Berra is supposed to have said “You can observe a lot just by watching,” and that is not a bad method of learning the principles and techniques of cross-examination. You sometimes even learn more from watching a wretched cross-examination than you can from watching a brilliant one. Set forth below are videos of cross-examinations performed in celebrated trials both recent and historical. In the videos you will see examples of both wretched and brilliant techniques.

STATE OF TEXAS vs AMANDA HAYES
Amanda Hayes stood trial for helping her husband kill and dismember his ex-wife. She defended herself by claiming that she was an innocent victim of circumstance who knew nothing of the murder until her husband told her about it and enlisted her aid in disposing of the body.

STATE OF TENNESSEE vs JESSIE DOTSON.
Jessie Dotson stood trial for the mass murder of his brother and five other people. The State contended that he killed his brother in an argument and then killed the others in an attempt to eliminate witnesses.

STATE OF TEXAS vs JODI ARIAS
Jodi Arias stood trial for killing her boyfriend Travis Alexander, who was found dead in his home with 27 to 29 stab wounds in his body. Arias claimed she killed Alexander in self-defense.
Jodi Arias Cross-Examination, Day 1, Part 1 https://www.youtube.com/watch?v=Muqjj4B_9Kg
Jodi Arias Cross-Examination, Day 1, Part 2 https://www.youtube.com/watch?v=zl21IwjLkQ0
Jodi Arias Cross-Examination, Day 1, Part 3 https://www.youtube.com/watch?v=zl21IwjLkQ0
Jodi Arias Cross-Examination, Day 2, Part 1 https://www.youtube.com/watch?v=23SBSj5VhL0
Jodi Arias Cross-Examination, Day 2, Part 2 https://www.youtube.com/watch?v=A7czwIw9iPc
Jodi Arias Cross-Examination, Day 2, Part 3 https://www.youtube.com/watch?v=A7czwIw9iPc
Jodi Arias Cross-Examination, Day 3, Part 1 https://www.youtube.com/watch?v=FRxKpQqfBrE
Jodi Arias Cross-Examination, Day 3, Part 2 https://www.youtube.com/watch?v=EuDwXwt9UHs
Jodi Arias Cross-Examination, Day 4, Part 1 https://www.youtube.com/watch?v=6DHS3h4Cp98
Jodi Arias Cross-Examination, Day 4, Part 2 https://www.youtube.com/watch?v=ZQY1hwcSpY4
Jodi Arias Cross-Examination, Day 5, Part 1 https://www.youtube.com/watch?v=iIpwiPxPn7Y
Jodi Arias Cross-Examination, Day 5, Part 2 https://www.youtube.com/watch?v=L_TCy2_816Y
Jodi Arias Cross-Examination, Day 5, Part 3 https://www.youtube.com/watch?v=Iniso_hINQY

STATE OF FLORIDA vs MICHAEL DUNN
Michael Dunn stood trial for murder and attempted murder for firing multiple shots into an automobile which was playing music too loudly to suit him. Dunn claimed he acted in self-defense. The jury convicted him on the attempted murder counts but hung on the murder count. Dunn awaits retrial on the murder charge.
Michael Dunn Cross-Examination, Part 1 https://www.youtube.com/watch?v=GtqSnInyWQo
Michael Dunn Cross-Examination, Part 2 https://www.youtube.com/watch?v=H0WlOniKN68
Michael Dunn Cross-Examination, Part 3 https://www.youtube.com/watch?v=lWaRfKDBXfI

INTERNATIONAL MILITARY TRIBUNAL vs HERMANNN GOERING
Hermann Goering, who at one time was Adolph Hitler’s right-hand-man, stood trial at Nuremberg for war crimes and crimes against humanity. Goering proclaimed himself to be “not guilty in the sense of the indictment.” He testified that he was blindly loyal to Hitler and completely ignorant of the Holocaust.
Nuremberg, Cross-Examination of Hermann Goering, Part 1 https://www.youtube.com/watch?v=mfwujaV7Ia8
Nuremberg, Cross-Examination of Hermann Goering, Part 2 https://www.youtube.com/watch?v=clNXvdkJs44
Nuremberg, Cross-Examination of Hermann Goering, Part 3 https://www.youtube.com/watch?v=GuI9IfbPsKk
Nuremberg, Cross-Examination of Hermann Goering, Part 4 https://www.youtube.com/watch?v=lKRZCyO-htE

REPUBLIC OF SOUTH AFRICA vs OSCAR PISTORIUS
Oscar Pistorius, the “Blade Runner,” stood trial for the murder of his girlfriend. Pistorius claimed that he accidentally shot his girlfriend in self-defense when mistook her for a burglar.
Oscar Pistorius Cross-Examination, Appears to Change His Story https://www.youtube.com/watch?v=7rcVtBcvCTo

PEOPLE OF THE STATE OF CALIFORNIA vs O.J. SIMPSON
Mark Fuhrmann was an L.A.P.D. officer who participated in the investigation of the murders of Nicole Simpson and Ron Goldman. Fuhrmann discovered key evidence in the case, and the defense attempted on cross-examination to establish that he fabricated the evidence because of his bigotry and racism.

## Friday, May 23, 2014

### COLD READING TECHNIQUE FOR CROSS-EXAMINATION

Years ago a friend of mine asked me (Bob Dekle) to watch a late night television show with him. In the show, a psychic summoned dead relatives from beyond the pale to talk to his guests. The show began with some appropriate music, a video of stars swirling in the galaxy, and a voice-over talking about communicating with the dear departed. The star came onstage and summoned the first subject to join him. After a few preliminaries, the psychic began his spiel, asking questions of the subject and then making remarkably accurate observations about the person whom the subject wanted summoned from the beyond. Before the ghost of the departed relative made his appearance, I said to my friend, “You see what he’s doing, don’t you?” My friend had no idea. I explained. “The psychic is picking the subject for information and then feeding it back to her.” My friend considered what I had said for a moment and then replied, “You sure know how to spoil a party, don’t you?”

Although I didn’t know it at the time, I had just witnessed my first “cold reading.” Cold reading is a technique used by psychics to extract information for use in conjunction with Tarot readings, sÃ©ances, and the like.  Con artists also use the technique to extract money from their victims, and confidential informants use it to give the appearance of assisting law enforcement without really telling the officers anything that wasn’t already known. The Full Facts Book of Cold Reading gives a thorough description of the techniques involved. In reading that book, I was struck by the similarities between cold reading and concession-seeking cross-examination.
1.    Both techniques are tools of persuasion. In the one the audience for persuasion is the person being questioned, in the other the audience is the jury.

2.    Cold reading seeks to persuade the subject what wonderful talent the reader has; concession-seeking cross-examination seeks to persuade the jury what a wonderful case the examiner has.

3.    Cold reading seeks to achieve persuasion by discovering previously unknown facts to use in achieving persuasion; concession-seeking cross examination seeks to achieve persuasion by disclosing previously known (or strongly suspected) facts to use in achieving persuasion.
4.    Cold reading achieves persuasion by extracting facts from unwitting subjects; concession-seeking cross-examination achieves persuasion by extorting facts from unwilling witnesses.

5.    Both techniques work from general and non-controversial facts to specific and vital facts.
A cold reading might progress something like this:

Q. I’m getting the feeling that there is a significant person in your life whose name starts with J—perhaps Jane or Jamie or Joan, does that feel right to you?
A: Well, I don’t have any girlfriends, but my boss is named John.
Q: John is a significant person in your life?
A: Yes, very.
Q: This wouldn’t involve issues relating to John’s making unfair demands upon you?
A: No, nothing like that.
Q: I didn’t think so. So you have a cordial relationship with your boss?
A: Yes. I really enjoy working for him.
Q: John has more or less taken you under his wing?
A: Yes.
Q: Mentored you?
A: Yes.
Q: Tried in every way to help you to succeed and excel?
A: Yes.
Q: He might even be grooming you to take over his job when he retires.
A: Yes, that’s right. How on earth could you possibly know that?

Assume that John is the defendant in a lawsuit and this person is called as a witness on his behalf. A concession-seeking cross-examination seeking to lay the groundwork for an impeachment for bias might run something like this.

Q: You’ve worked for John for quite some time?
A: Yes.
Q: You have a cordial relationship?
A: Yes.
Q: You enjoy working for him?
A: Yes.
Q: He’s taken you under his wing?
A: Yes.
Q: Mentored you?
A: Yes.
Q: Helped you to excel in your job?
A: Yes.
Q: In fact, he’s mentoring you to take over his job when he retires next year?
A: Yes.
Q: You owe him a great debt of gratitude?
A: Yes.

The difference between the two is that the cold reader begins with a plausible guess, draws reasonable inferences from the facts admitted, and discovers a fact which convinces the subject he has true psychic powers. The concession-seeking cross-examiner begins with an uncontested fact and builds upon that fact with reasonable inferences and other known facts to the point of painting the witness into a corner where the witness must admit a disagreeable fact.

One of the best jobs of employing this technique which I have ever witnessed came in a double murder case occurring at a pool hall. The only eyewitness to the crime was the defendant’s brother, who steadfastly refused to testify. Finally, the witness was persuaded to testify in order to be released from a jail sentence for contempt of court. If he had been directly asked about the killing, he would have immediately [and somewhat truthfully] said “I didn’t see nothing.” The cross-examiner began the examination with non-controversial facts, such as the fact that the two brothers went out on the town the night the murder occurred. Moving slowly and methodically from that uncontested fact to other uncontested facts, the examiner slowly drew the noose tighter and tighter. By the end of the cross-examination the examiner had the witness standing outside the pool hall with his brother, who was angry over some slight perpetrated by one of the two men in the bar. The examiner slowly walked the witness through his brother’s opening the trunk of the car, removing a sawed-off shotgun, checking to see if it was loaded, and going back into the pool hall. Then the examiner had the witness describe the report of two gunshots followed by his brother leaving the pool hall and putting the shotgun back into the trunk. Mission accomplished.

The author of Cold Reading describes this technique as the “cream principle.” When creaming coffee, pour in a little at a time until you get it right. If you try to put it all in at once, you will likely ruin the coffee.  The author’s “cream principle,” as well as several other techniques he describes, can very profitably be used by the concession based cross-examiner.

## Friday, May 2, 2014

### NEW CROSS-EXAMINATION TRAINING

There will be a healthy dose of instruction on winning cross-examination strategies and techniques at the new week-long Advanced Trial Advocacy Institute (ATAI) that I and Professor Marilyn Berger are chairing. The course begins June 2, 2014. Seattle University Law School and the American College of Trial Lawyers are sponsoring this  CLE program. 31.5 CLE credits pending.

Focus on Cross-Examination

Cross-examination will be an emphasized component of the Institute because it is the most challenging trial skill to perfect. Besides a presentation on “Concession-Seeking Cross-Examination,” the faculty will demonstrate cross-examination techniques and the attendees will engage in cross-examining witnesses. Colette Tvedt of Shroeter Goldmark & Bender will conduct the cross-examination demonstration. Four workshops are dedicated to examining witnesses.

Distinguished Faculty

The Advanced Trial Advocacy Institute program will be taught by an outstanding faculty of over 20 accomplished trial lawyers, judges and communication specialists, including: Amy Forbis (Pres. American Board of Trial Advocates); Thomas Lemly (Pres. Wa. State Committee of American College of Trial Lawyers); Karen Koehler; Jeffrey Tilden; Lisa Marchese; Judge John Erlick; and Craig Smith (Senior Trial Consultant, Prolumina – Litigation Strategies).

Benefits of this week-long course:

*   Preparing and trying a case with guidance and supervision.
*   Seasoned trial attorneys, as well as communication specialists,
*   One-on-one video review of your presentation.
*   Develop effective courtroom communication techniques.
*   Understand today’s visual trial technology.
*   In-depth discussion on trial ethics and avoiding pitfalls.

The course is designed for new lawyers who are seeking a firm foundation in the finest trial skills through more experienced trial lawyers who want to take their skills to a higher level.