Thursday, September 21, 2017


Thomas O’Toole Ph.D., and I have co-authored Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, which will be published by Carolina Academic Press in November 2017. Tom is President of Sound Jury Consulting and has practiced across the nation as a jury consultant since 2003 in nearly every litigation type. Jury Selection Handbook is part of the Lawyering Series, edited by Roger I. Abrams of Northeastern Law School.

Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for law students and fledgling lawyers who are acquiring their jury selection skills, as well as veteran trial lawyers who want to refresh and expand their approaches. The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions. The book can be adopted for law school trial advocacy courses and clinics as well as continuing legal education seminars. Online appendices provide examples of jury questionnaires, motions and responses to motions, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases. 

If you are a professor teaching in this field you may request a complimentary copy

Tuesday, September 19, 2017


David Boies

In the book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.


As we have explained in Cross-Examination Handbook and here, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way:

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows:

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?
“A: Well, you’re putting words in my mouth now.
“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“”I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony and the witness paid the consequences.


Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet retun to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and  is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

Wednesday, September 6, 2017


The cross-examiner must know the answer before asking the question on cross. That is the axiom. The answer sought is the truth that either supports the examiner’s case theory or undermines the other side’s case theory. The proposition holds true for lay witnesses and, as the following example shows, for expert witnesses as well.
Conrad Murray, Michael Jackson’s doctor was prosecuted for involuntary manslaughter. 

The defense called Dr. Paul White to testify to, among other things, that Jackson self medicated with his own stash of propofol thereby causing his own death. 
Prosecutor David Walgren 
Prosecutor David Walgren relied on concession-seeking cross-examination to build his case against Dr. Murray. Walgren asked questions to which he knew the defense expert had to answer in a manner favorable to the prosecution. They included:

"Do you agree that there are instances where Dr. Murray deviated from the standards of care in his treatment of Michael Jackson on June 25, 2009?"

 "And would you agree that there were instances where Dr. Murray deviated from the standards of care in the preceding two months of treatment, as relayed by Dr. Murray in his statement to police?"

“Have you ever used propofol in someone’s bedroom?”

“Have you ever heard of anyone doing that prior to this case?”

Murray’s expert Dr. White had to make these concessions because they comported with common sense and the standard of care for medical treatment of a patient.

Cross-Examination Handbook covers this concession-seeking cross-examination technique, including how to identify the content of this type of cross – what the truth that the witness must concede - and how to construct and conduct a smooth flowing and effective cross to elicit the truth.

Friday, September 1, 2017


As we have said here and in Cross-ExaminationHandbook, the primary goal of cross-examination is to capture the truth from the witness. On cross, you shouldn’t be trying to discover anything; you shouldn’t ask any interrogatory questions. You know the truths that the witness has to offer and you aim to extract those known truths. If the witness fails to provide the truths that you can prove by direct or circumstantial evidence or by common sense, the witness will suffer the consequences.

The Pizza Connection case provides a stark example of how a witness’s testimony can be exposed as comical if the witness refuses to provide the truthful answers. The Pizza Connection case was a mega-trial involving 18 defendants who were charged with a $1.6 billion heroin smuggling and money laundering that stretched from Brazil to small pizzerias in the the Midwest. Trial lasted from October 24, 1985 to March 2, 1987.

The following is an excerpt from Shanna Alexander’s book The Pizza Connection: Lawyers, Money, Drugs, Mafia 318-320 (Weidenfeld & Nicholson) (1988) in which she describes United States Attorney Robert Stewart’s cross-examination of an alibi witness and it’s a gem of a cross:
(Defense counsel) Larry Bronson’s defense of (defendant) Sal Greco is focused on his client’s need to prove that he was not in a Bagheria farmhouse in early March 1980 watching a heroin quality-control test. Bronson will show he [Greco] was quietly, busily at home in New Jersey. He calls Greco’s good friend and tax accountant, Justin Pisano, a man who keeps detailed date books.
Under patient examination by Bronson, the witness goes through a precise account of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts and to visit nearby pizzerias with his client in order to compare their business with that of the Greco pizzeria in Neptune City.
Stewart’s cross-examination of Pisano becomes this prosecutor’s finest hour. He concentrates on the March date-book entries.
“On March 2, yes, I drove down to see Greco,” Pisano says, “and we had a leisurely dinner.”
“You told us yesterday you were in no rush, right?”
“And that’s the truth, the whole truth, and nothing but the truth?”
“Then what is this appointment for 7:00 p.m., with Troviatta?”
“Just a tax appointment. Early March is income tax time, and I made many Sunday and night appointments to service all my tax clients.”
“What is Troviatta’s first name? Where does he live?”
“I don’t remember. I don’t even think I do their taxes anymore.”
Stewart remembers. He says Pisano was thirty-five miles away from Greco’s pizzeria
that night, in the heart of Manhattan, at Lincoln Center, at the opera.
Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.
“Are you an opera fan?”
“Nope. Only been to one opera in my life, when I was in high school.”
Stewart shows the witness, and the jury, the Sunday-evening newspaper opera
listing for March 2, 1980, at the New York State Theater at Lincoln Center: La Traviata. Bronson objects. “Misleading the witness, your Honor. His witness’s tax client is named Troviatta—with two t’s.”
“And the advertisement for the opera is spelled T-R-A-V-I-A-T-A, right?”Stewart asks. “No. It’s La Traviata,” says Pisano gamely.
“La Traviata?”
“Right. I don’t see the comparison to Troviatta.”
“Except for the time. That’s a coincidence. Isn’t it?”
Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead,
March 16, at one in the afternoon.
“Are you referring to Carmen? Carmen Sangari, who I no longer do?”
“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listing for that Sunday afternoon. Pisano looks, and agrees that this is truly an amazing coincidence.
Spectators have begun to giggle. But Stewart is not finished. He directs the wit- ness’s attention to his diary entry for the following Sunday at 7:00 p.m. “Is that a tax client of yours?”
The giggling turns to guffaws. The notebook says, “Barber of Seville.”
This cross illustrates that no matter which way the witness responds, the cross-examiner wins when the question require that the witness concede the truth or suffer the consequences.