Friday, November 17, 2017

CROSS-EXAMINATION HANDBOOK

Cross-Examination Handbook: Persuasion, Strategies and Techniques Second Edition (Wolters Kluwer 2014) explains how to take control in cross-examination. It is your turn to testify. All the essential skills and strategies you need are covered. And, the Handbook provides step-by-step instruction combined with outstanding examples from illustrious cases such as the John Scopes, Enron, Senator Stevens and O. J. Simpson trials.

Cross-examination skills training assignments for two criminal and two civil cases are provided for use in law school classes and professional skills development CLE workshops.

SUMMARY OF CONTENTS:

1. Introduction to Book, CD, & Website
2. Purposes of Cross & the Total Trial Approach
3. The Content & Concession-Seeking Cross
4. Constructing the Cross: Your Chance to Testify
5. Impeachment Cross: Reliability
6. Impeachment Cross: Report
7. Impeachment Cross: Reporter
8. Character & Conduct in Trial
9. Witness Control: Strategies & Techniques
10. Preparing the Winning Cross-Examination
11. Cross-Examining Expert Witnesses
12. Forgetters, Perjurers, Adverse Witnesses, Deponents, & More
13. Ethical & Legal Boundaries of Cross
14. Cases & Assignments

CD in pocket of back cover: Case Files for two civil & two criminal cases

TEACHER'S MANUAL (100 pages) with Actors' Guide on CD with instructions for witnesses who will be subject to cross-examinations.

Here is a sample review of Cross-Examination Handbook: "Having tried dozens of cases and having conducted hundreds of cross-examinations, I can say that this book will not only be something I review as part of trial preparation but is also a book to be given to new lawyers in our office. For years I have carved out 'thinking time' in my trial preparation to review McElhaney's Trial Notebook. I have now added this terrific book by Clark, Dekle and Bailey." Randy J. Cox, Boone Karlberg P.C., Missoula, Montana


Thursday, November 9, 2017

ORGANIZED EFFECTIVE CROSS-EXAMNATION

An effective cross-examination is one that is easy for the jurors to follow and has a dynamic impact on them. Are the jurors following your cross-examination? Or, are they lost? Is your cross-examination easy to comprehend? Or, is it just a jumble? Is the structure of your cross achieving your purpose? Or, is it just rehashing the direct? While a great deal of attention in trial advocacy texts and teachings is devoted to cross-examination techniques, such as ask only leading questions, less is spent on how to organize the cross. Consequently, many cross-examinations are disorganized and leave jurors in a quandary. You want a cross-examination that is organized into a dynamic and persuasive presentation. What follows is a republication of a checklist of do’s and don’ts for organizing your cross-examination.

DO – THINK CASE THEORY

James W. McElhaney, the trial lawyers’ sage, explained this principle as follows: “It is the theory of the case, then, that provides the starting point for organizing cross-examination. If we once again take organization in the broader sense – content as well as order – the first question is not just what to include, but whether to cross-examine a witness at all.
“The obvious answer is, do not cross-examine a witness unless it would help the case to do so. The only difficulty with that is knowing when it would help the case.
“Understandably, it is a point about which thoughtful lawyers can disagree. There are some, for example, who are quick to say ‘no questions.’ And there are some far more who ought to follow their example.” McElhaney’s Trial Notebook.

The primary goal of cross-examination is to either bolster your case theory or undermine your opponents. And,  the focus of the concession-seeking cross should be on making main points, not exploring minutia.

DO – START STRONG

Because you have the jury’s attention when you begin your cross and because what they hear first will be more likely to be retained than what they hear later (rule of primacy) make the beginning of the cross count for something. If, on that rare occasion, you can decimate the witness at the start of cross, do it. But, more often, you can begin the cross by gaining the concessions that support your case theory or undercut the other side’s. Here, you start cross in a non-confrontational and friendly manner with a series of questions to which the witness should answer in the affirmative. Save your impeachment cross for later, and if you turn the witness to your own, abandon the impeachment.

DON’T – THINK DIRECT

Counsel listens carefully to the witness’s answers to opposing counsel’s direct examination and takes copious notes marking up those notes with points to make on cross. “Your witness” says opposing counsel, and the cross-examiner embarks on a cross that tracks those notes taken during the direct.  For at least two reasons, this is the worst organizational structure for a cross-examination. First, the order of questioning is dictated by opposing counsel rather than the cross-examiner. Second, inevitably, the cross-examiner rehashes the direct – “You testified on direct that . . .”

DO – THINK TOPICAL UNITS

Think of your cross as a compilation of topical units, like short stories. Each one has a single topic to cover. These are main points, not minutia. For example, the topic could be the deficiencies in the qualifications of the other side’s expert witness. In Cross-ExaminationHandbook, we discuss how to brainstorm for and structure these topical units. Once you have formulated the topical units, organize those units into the best possible logical presentation.

DO – POINT THE WAY

Nothing helps the jurors more in their effort to keep up with your cross than providing them with sign posts along the road. Simply declare your topic: “Now, let’s talk about the data you relied upon in reaching your opinion.” This is not a question, but nobody ever objects. Everyone in the courtroom appreciates you telling them where things are heading.

DO – END STRONG


Nothing is worse than a cross that ends with a fizzle rather than a bang. There is no excuse for a bad finish. You want to end strong because the jurors will remember best what you did last (principle of recency). Always reserve for your last line of questioning a powerful, invulnerable point founded on admissible evidence which the witness must concede or be impeached. Couple that strong point with your confident appearance and “No further questions,” and you have concluded an organized dynamic cross.

Tuesday, October 31, 2017

NINE GOLDEN RULES FOR CROSS-EXAMINATION


British barrister David Paul Jones’s Rules of Cross-Examination wrote these Nine Golden Rules of Cross-Examination a century and a half ago. These Rules are worth posting again here because they will serve a trial lawyer well.

1.                  Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions--all the soul--is there.   
                      
2.                  Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The mental reservation of the witness--is often manifested in the tone or accent or emphasis of the voice.

3.                  Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

4.           An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth.

5.                  But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.

6.                  Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game--partial and temporary success may otherwise end in total and remediless defeat.

7.              Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.

8.            Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.

9.                   Thus, as you rise to cross-examine a witness, you should be armed with the skill to adopt the style required for this particular witness and jury, the technique to search out the truth, the knowledge of guidelines that have developed over the centuries, and, most important, the wisdom to discern the proper combination of style and technique you need to serve well the consummate role of the cross-examiner--the truth giver.


For other rules (Irving Youngers Ten Commandments) for cross-examination, can be found here along with a link to a youtube video of Younger.

Friday, October 27, 2017

PACING DURING CROSS-EXAMINATION

Bailey in OJ Simpson Trial
Renowned cross-examiner F. Lee Bailey’s pointer on cross-examination is to keep the cross-examination questions moving along at a quick clip so that the witness doesn’t have time to concoct answers. Excellent tip. As he points out being wedded to notes can slow down the pace.

Moving at a fast pace, but not running over a witness, is a tenet that applies particularly well to the cross of an expert witness who will fill the air if counsel permits it. Nothing is more painful to observe than a lawyer who turns away from the expert on the stand and returns to counsel table, allowing the expert to expound in the vacuum provided by the lawyer who turned a back to a professional witness. 

Watch the video of Bailey’s cross-examination of Mark Furhman in the O. J. Simpson case to see how he kept the examination moving at a rapid pace.