Friday, April 17, 2015

CROSS-EXAMINATION AS THE FOUNDATION FOR SUMMATION

I (Bob Dekle) vividly remembered a brilliant cross-examination that I did of a defendant in a First Degree Murder case. Being a typical trial lawyer means you are also a raconteur, so I told and retold the story of this cross-examination over and over, and as the years rolled by it became more brilliant with each retelling of the story. When I became a legal skills professor at the University of Florida, I naturally thought that the story of the cross would make a good lesson for one of my classes. Rather than retell the story from memory, though, I decided to go to the actual court file and get a copy of the transcript of the cross.

You can imagine my chagrin when I got the transcript and discovered that the defendant never testified at trial. I was certain that I had done the cross. Perhaps I had done it during the defendant’s testimony on a pretrial motion to suppress. I pulled out the transcript of the motion hearing, and found that the defendant hadn’t testified at the suppression hearing either. I was beginning to feel that I was in the Twilight Zone.
I was still dead certain that I had done the cross. Where was it? Then I got an idea. I read my final argument and there it was! I had prepared my cross as a series of short declarative statements with an appended tag question. (e.g. You did it, didn’t you?) Since it was a concession-based cross, the declarative statements were statements of fact with which the defendant could hardly disagree. When the defendant failed to take the stand, I had merely dropped the tag questions, changed the second person "you" pronouns to third person "he" pronouns, and incorporated the cross-examination into my final argument.

Solving the mystery of what had happened to my “brilliant” cross reminded me that I had done the same thing a number of times before. The first time I ever did this was back in the early 1980's in a drug trafficking case. The defendant was caught driving a tractor trailer loaded with a half ton of marijuana, and he had given the arresting officer a cock-and-bull story about how he had been hired by a mysterious disappearing stranger to drive the tractor trailer from Point A to Point B without opening the trailer to look inside.

I prepared what I anticipated would be a blistering cross-examination, and I was bitterly disappointed that his lawyer rested without calling him. I thought I had prepared  good cross-examination and I really wanted to use it, so I used it in final argument.

Cross-examination is, after all, a tool for laying the foundation for your final argument. When the defendant disappoints you and doesn’t take the witness stand, you can still use your preparation for cross as a component of your final argument.   

Sunday, March 29, 2015

STORYTELLING CROSS-EXAMINATION OF ELLEN PAO

Ellen Pao’s law suit seeking $16 million against former employer Kleiner Perkins Caufield & Byers is over. It ended with a defense verdict. This high profile case, according to an Associated Press article on March 23, 2015 “put a spotlight on gender imbalance in Silicon Valley has prompted some technology and venture-capital companies to re-examine their cultures and practices, even before a jury reaches its verdict.” After the verdict, Pao reportedly said, “I have told my story and thousands of people have heard it. If I helped to level the playing field for women and minorities in venture capital, then the battle was worth it,” Associated Press, Mar. 27, 2015.


The defense verdict was probably in no small measure the result of the cross-examination by defense lawyer Lynne Hermle (pictured above) that told a different story from Pao’s. Counsel’s cross was designed to show that Pao had misrepresented and twisted facts. Hermle used the concession-seeking cross-examination technique to show that Pao was passed over for promotion due to her conflicts with colleagues, not out of gender discrimination. For example, as a visual, Hermle used a chart that Ellen Pao had created that listed “resentments” that she had against a partner in the firm. Hermle got Pao to concede that she clashed with a secretary who was late for work and got in a yelling match with a fellow female junior partner. Lynne Hermle’s cross-examination is an excellent example of how to get a party to concede facts and tell the cross-examiner’s story to the jury.

Sunday, March 22, 2015

DAVID BOIES’ ADVICE ON CROSS-EXAMINATION

David Boies once again proved his preeminence as a cross-examiner in California’s Proposition 8 case. After driving out two of the other side’s experts when he took their depositions, Boies then turned the one remaining expert into his with his cross-examination at trial.

How does David Boies over and over again conduct devastating cross-examinations? The answer is that he uses the concession-seeking cross-examination technique that we describe in Cross-Examination Handbook 2nd Edition. This technique is founded on the proposition that the primary purpose of cross is to compel the witness to concede the truth.

This is not a new concept and approach to cross-examination. Emory R. Buckner expressed it well in a chapter in Francis Wellman’s seminal work The Art of Cross-Examination (1903):

            "More cross-examinations are suicidal than homicidal. There are two reasons for this: a mistaken conception as to the function of cross-examination, and faulty technique.
            The purpose of cross-examination should be to catch the truth, ever an elusive fugitive. . ."

Boies embraces and applies the proposition that cross should aim to catch the truth. In an interview, Boies described his cross of the expert called in support of Proposition 8 as follows:

Boies: . . .To ask whether he agrees that not allowing gays to marry while children are being raised by gays is not good for the children, that’s a tricky question, because you narrow it down so that’s the only thing he can say. But you have to listen. If you pick the questions right, the only way to answer the questions to support what you want in the case is to lie. (in the interview, Boies noted that after the cross, the expert wrote an op-ed in the New York Times how he had become a supporter of gay marriage and the good it can do)
Interviewer: You really enjoy that.
Boies: Oh yeah. No question because that is the way you get at truth. Cross-examination is probably the best way we have to really get at the truth. We put somebody on the witness stand, call them to answer questions and it takes an extraordinary person to be able to successfully lie without being tripped up. 

Lawdragon, 198
For more on David Boies’ advice and his application of the concession-seeking method when he took Bill Gates’s deposition, click here.

Saturday, February 28, 2015

2015 ADVANCED TRIAL ADVOCACY INSTITUTE AND CROSS-EXAMINATION

“I attended, participated in and enjoyed the Advanced Trial Advocacy Institute.

It is a comprehensive ‘how to’ demonstration curriculum in which the attendees have an opportunity to observe and then perform everything from voir dire to examination of witnesses to closing argument …”

Ron Ward
President, Washington State Bar Foundation, 2008-2011
President, American Board of Trial Advocates, 2012
Washington State Trial Lawyers Association President’s Award
Super Trial Lawyer since 2003

Save the Dates - June 15-19, 2015 – for the Advanced Trial Advocacy Institute at Seattle University Law School.

The Advanced Trial Advocacy Institute, June 15-19, 2015, is co-sponsored by the American College of Trial Lawyers and the American Board of Trial Advocates. ATAI offers a proven conceptual approach to trial practice combined with premier trial principles and strategies for every phase of trial from preparation through closing argument. During the week-long course, the best of the best trial lawyers and faculty will provide you with lectures and demonstrations of successful trial skills.

Cross-examination is a featured topic  at the ATAI. Attendees will not only have a presentation on Cross-Examination but also a faculty demonstration of cross. Then, attendees will conduct cross-examinations and receive faculty live and video critiques


To register and for complete information, click here. 


Who should attend

The course is designed for both beginning and experienced practicing lawyers, who are seeking a firm foundation of the finest trial skills taught by experienced trial lawyers, who will to take their lawyering skills to a higher level. The course is also open to a few select law students who have completed their second year and have taken an Evidence course. Seattle University Law Students will receive two academic credits for successfully completing the course.

Topics to be addressed include:

Developing Case Theories, Themes and Trial Strategies .Courtroom Communication Techniques .Trial Preparation and Planning .Effective Jury Selection .Convincing Opening Statement .Conducting a Compelling Direct Examination .Presenting and Attacking Expert Testimony .Creating Dynamic Trial Visuals .Today's Courtroom Technology .Trial Ethics and Avoiding Pitfalls. Impeachment and Concession Cross-Examination and Persuasive Closing Argument.


Distinguished Faculty Members

Judges

Hon. Terrence A. Carroll, King County Superior Court (ret.)
Hon. John H. Chun, Judge, King County Superior Court
Hon. John P. Erlick, Judge, King County Superior Court
Hon. Dean Lum, Judge, King County Superior Court
Hon. Jack Nevin, Judge, Pierce County Superior Court

Attorneys and Academics

Dan ‘L W. Bridges, McGaughey Bridges Dunlap PLLC
Amy T. Forbis, Bennett, Bigelow & Leedom
Barbara Frost, Adjunct Professor, Seattle University School of Law
Erick D. Gilman, Gordon, Thomas Honeywell
Karen Koehler, Stritmatter Kessler Whelan
Avi Lipman, McNaul Ebel
Thomas A. Lemly, Davis Wright Tremaine
Lisa Marchese, Dorsey Whitney
Simion Osborn, Osborn Machler
Stephen Penner, Chief Deputy Prosecuting Attorney, Pierce County Prosecutor's Office
Jeffrey Robinson, Schroeter Goldmark and Bender
Jeff Tilden, Gordon Tilden Thomas & Cordell
Lish Whitson, Lish Whitson, PLLC

Communication Specialists

R. Craig Smith, Senior Trial Consultant, Best-Witness

Thomas M. O'Toole, Ph.D., President & Consultant, Sound Jury Consulting
Tara Parker, Prolumina