Saturday, February 4, 2017


Checklists are critical to a winning cross-examination. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another member of its five-person crew. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test pilots considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for cross-examiners as well. At the end of almost every chapter in Cross-Examination Handbook:Persuasion, Strategies and Techniques 2nd Edition is a checklist of matters that are essential to effective cross-examination. The following is an example of a checklist that follows the chapter in Cross-Examination Handbook that focuses on exposing the false or exaggerated nature of what the witness reports on the stand.
Checklist: Impeachment Cross: Report

   q Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401402. 

   q Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 

   q The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 

   q The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 

   q The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 

Prior Inconsistent Statements
   q Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements.
     If the witness admits the prior statement, extrinsic evidence of the statement 
may be excluded as cumulative under Rule 403. 

     If the witness does not unequivocally admit the prior statement, extrinsic evi
dence of the statement is admissible. 

     The witness must be given an opportunity to deny or explain the statement. 

     The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 

q Avoid impeaching with minor inconsistencies, except: 

1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 

2. When necessary to force an evasive witness to yield concessions. 

q Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would 
otherwise be inadmissible evidence. 

q Eight essential techniques for impeachment with a prior inconsistent statement are:
1.                   Recognize the inconsistency; 

2.                   Retrieve the prior statement; 

3.                   Repeat the testimony; 

4.                   Reinforce the truthful statement with where said, when said, who heard, what 
said, and whether said; 

5.                   Reference the prior statement; 

6.                   Resonate with the jury; 

7.                   Read or display; and 

8.                   Refute the witness’s denial. 

q Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition.
 Apply the eight essential techniques when impeaching with a deposition.

         With video deposition clips the impeachment has a greater impact on the jury 
than with just the transcript. 

q Impeach the witness’s trial testimony by revealing that the witness previously 
failed to act or relate the same information when it would have been human nature to do so. 

q Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 

q Having a witness comment on the credibility of another witness—pitting—is improper. 

Sunday, December 25, 2016


Talbot Publishing recently released my co-author Bob Dekle’s book entitled Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann.  Although the Lindbergh kidnapping case has been written about innumerable times, never before has the trial of Bruno Richard Hauptmann been meticulously researched and analyzed. Bob and his co-author Jim Dedman have done just that.            

The book is somewhat reminiscent of Vincent Bugliosi’s book Outrage: The Five Reasons O. J. Simpson Got Away WithMurder. In Outrage, Bugliosi, who had prosecuted Charles Manson, explains how he would have prosecuted Simpson, along with providing examples of what he would have done, such as what he would have said in closing argument.

Lindbergh Kidnapping Case is instructive on how to conduct a cross-examination. For instance, one of the prosecution witnesses at the Hauptman trial was John Conlon, an interloper who was involved in the negotiations over the ransom. This is how the book assesses defense counsel’s strategy in cross-examining Conlon:

Reilly adopted the wrong strategy for the examination of Condon. Instead of attacking the implausibility of Condon’s testimony, he attacked Condon personally. What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony. . .
Rather than merely criticizing the strategy, the book recommends effective techniques that could be utilized as follows:
Reilly should have attacked the plausibility of the testimony, not the personality of the testifier. Snide remarks and personal assaults proved counterproductive and resulted in this portion of the cross-examination being diverted down a rabbit trail of arguing over the meaning of words. He would have done better by asking a line of tight and controlling single-fact questions. Such a line of questioning might have gone thus:
Q: You attended a lineup at the Greenwich Street police station in New York?
A: Yes.
Reilly should expect Condon to append a verbal barrage to his affirmation, but he should not take the bait. Rather he must relentlessly pursue the non-identification.
Q: The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery?
A: Yes.
Q: Bruno Richard Hauptmann was in the lineup?
A: Yes.
Q: At that time you did not identify Mr. Hauptmann as John?
A: I identified Mr. Hauptmann at that time but I made no declaration of identification.
The Lindbergh Kidnapping Case is the perfect read for anyone interested in the Lindbergh case, an insightful telling of the story of the Hauptman trial, and a superb tutorial on trial strategies and techniques with illustrations from this famous case.

Sunday, March 20, 2016


Among the legends that grew up after Lincoln’s death, there is a story of Lincoln persuading a jury to ignore the law in a case which he handled in 1847. According to the traditional story, an elderly gentleman named either Cass or Case sold a “prairie team” to two brothers named Snow. A prairie team consisted of a heavy duty plow for breaking never-before cultivated prairie land and a team of oxen to pull it. The Snow brothers signed a note for the team, which they refused to pay when it came due. Cass hired Lincoln to sue on the note. The lawyers defending the Snows interposed a plea of infancy and thus the issue was joined. At the trial it was readily admitted that the brothers signed the note, but the defense called a witness to testify that they were both under the age of 21. 

Stymied and enraged by the hyper-technical defense that the brothers’ crooked lawyers had interposed, Lincoln supposedly gave a rousing final argument which convinced the jury to ignore the law and find for the plaintiff in spite of the fact that the boys were not legally obligated to pay the note. Lincoln accomplished this feat by putting the brothers’ lawyer on trial.  Lincoln’s argument to the jury went something like this:

Gentlemen of the jury: are you willing to allow these boys to begin life with this shame and disgrace attached to their characters? If you are, I am not. The best judge of human nature that ever wrote has left these immortal words for all of us to ponder:

    Who steals my purse steals trash;‘tis something,       nothing;

    ‘Twas mine, ‘tis his, and has been slave to            thousands;
         But he that filches from me my good name,
         Robs me of that which not enriches him,
         And makes me poor indeed.

These poor innocent boys would never have attempted this low villainy had it not been for the advice of these men [their lawyers]. It was bad advice in morals and in law. The law never sanctions cheating, and a lawyer must be very smart indeed to twist the law so that it will sanction fraud.

After finishing a scathing rebuke of the boys unscrupulous lawyers Lincoln concluded by saying “And now, gentlemen, you have it in your power to set these boys right before the world.” The jury was allegedly so moved by Lincoln’s tongue lashing of his opposing counsel that they returned a verdict for the plaintiff without leaving their seats; and the brothers were so repentant that they willingly paid the purchase price.  It is a pretty story of how the saintly Lincoln achieved substantial justice, defeated the efforts of unethical shysters, and set two wayward children on the path to an honorable life by persuading the jury to ignore the law, but there is likely little truth in it.

What really happened, however, demonstrates that Lincoln was not only a surgical cross-examiner but also a careful pleader.

Mr. Cass did sell a prairie team to the Snow brothers; they were under age at the time they signed the note promising to pay for the team; Lincoln did file suit on Cass’s behalf; and the brothers’ attorneys interposed the defense of infancy to defeat Cass’s claim for payment of the note. Cass, however, had patiently allowed the Snow brothers ample time to pay the note and only filed suit after going for two years without being paid. All the defense had to do to defeat the claim on the note was to produce a witness who could testify that the Snows were under 21 when they signed the note.

As the defense witness testified on direct examination, the presiding judge, Samuel H. Treat Jr., immediately saw the flaw in the defense. At the time of the trial the brothers were undoubtedly over 21 and fully responsible for debts incurred as adults. If they still had Cass’s prairie team, and they had not paid for it, they could be compelled to pay the purchase price. A legally binding contract consists of an offer and an acceptance. Cass offered to sell the team for a set price when the boys were under age. They may not have been able to accept the team at the time they took possession, but they made a legally binding acceptance of Cass’s offer when they kept the oxen after coming of age. They owed Cass the money for goods sold and delivered, but they did not owe money on the note they executed when still under 21.

Treat saw that the case would rise and fall on how Lincoln had worded the complaint. Common law pleading was very strict. If Lincoln had filed a one count complaint simply alleging money owed on the note, Judge Treat would be required to direct a verdict for the defense. If, however, he had included a second count for goods sold and delivered, he could collect the price of the prairie team notwithstanding his inability to collect on the note.

When the defense witness finished testifying on direct examination Treat asked Lincoln “Is there a count in the declaration [complaint] for oxen and plow sold and delivered?”

Lincoln, ever the careful pleader, replied “Yes, and I have only two or three questions to ask the witness.” On cross-examination Lincoln then proceeded to prove that the brothers still had the prairie team:

Q: Where is the prairie team now?
A: On the farm of the Snow boys.
Q: Have you seen anyone breaking prairie with it lately?
A: Yes. The Snow boys were breaking up with it last week.
Q: How old are the boys now?
A: One is a little over twenty-one, and the other is near twenty-three.

So we see that Lincoln won his case through careful pleading and a surgical cross-examination; not by using his considerable oratorical skill to convince the jury to ignore the law. We can see that the heart and soul of Lincoln’s final speech did not come when he allegedly castigated the defense lawyers, but when he said:

The judge will tell you what your own sense of justice has already told you—that if those boys were mean enough to plead the baby act when they came to be men, they at least ought to have taken the oxen and plow back to Mr. Cass. They ought to know that they cannot go back on their contract and also keep what the note was given for.

The supposed tongue-lashing of the Snow boys’ lawyers is more likely legend than fact. In the unlikely event that Lincoln said anything unkind about the opposing lawyers, he must have said it with his tongue in his cheek.

It is plain that the lawyers defending the Snows did not persuade two innocent boys to make use of a sleazy dodge to evade payment. The Snows were deadbeats. They had refused to pay the bill for the oxen for two years before they got sued; and they certainly didn’t hire or consult their lawyers until they got sued. Lincoln knew as well as anyone that the lawyers interposed a valid legal defense when they pled the “baby act;” and he knew that defense lawyers are ethically required to use every lawful means to defend their clients.