Wednesday, July 15, 2015


Recently returned from the Balkans. For four days – June 29-July 2, 2015, my co-instructor Margaret Bodman (a prosecutor from Columbia, South Carolina and experienced trial advocacy teacher) and I (Ron Clark) conducted a train-the-trial-advocacy-trainers’ course in Prishtina, Kosovo. The course was held under the auspices of the Justice Department’s Office of Overseas Prosecutorial Development and Training (OPDAT). Resident Legal Advisors Michelle Lakomy and Constantine Soupios were in charge of the program. The overarching goal of the course was to spread the rule of law in Kosovo. 

Our audience was composed of Kosovo judges, defense attorneys and prosecutors who will in turn be teaching trial advocacy concepts and skills to other lawyers and judges throughout Kosovo.

Much of our discussions centered on cross-examination. The participants made it clear that cross was the most challenging of trial advocacy subjects to master and to teach to other Kosovars. Margaret pointed out that likewise in the United States it is considered one of our most challenging advocacy skills to learn and teach. During our training, the participants practiced cross-examination (pictured above) and how to effectively critique cross-examinations, which they will do with their students when they conduct advocacy training. It was suggested that Cross-Examination Handbook should be translated into Albanian.

One difficulty that participants expressed is that some of their judges misread their recently adopted Code to require, rather than permit, only leading questions on cross. While asking only leading questions is good technique (some may say a commandment), there can be exceptions.

This was my second opportunity to teach for OPDAT in Kosovo, and, once again, it was an honor and pleasure to work with these receptive and wonderful lawyers and judges in one of the newest countries in the world as it recovers from its recent, war-torn past. Below is a picture of Margaret and me presenting one of the participants with a certificate of completion for the course.

Friday, June 19, 2015


Lincoln & McClellan October 3, 1862 Antietam

There’s an old saying that you can take the boy out of the country, but you can’t take the country out of the boy. Apparently something similar to this old saying was true for Abraham Lincoln—you could take him out of the courtroom, but you couldn’t take the courtroom out of him. A consummate cross-examiner, he would not hesitate to use that skill when prodding his generals into action.

At an early stage of the Civil War it became apparent that President Lincoln and General George B. McClellan did not see eye to eye on the conduct of the war. Lincoln wanted McClellan to take his army (the largest in the world at that time) and make a direct attack upon the Confederacy.  McClellan wanted to take his time to prepare for a roundabout attack. 

On February 3, 1863 Lincoln sent McClellan a letter summarizing their differences and asking five questions. In accordance with the cross-examination maxim to never ask a question when you don’t know the answer, Lincoln believed that he already knew the short answers to each of these questions. He hoped by his letter to cause McClellan to shake off his lethargy and get moving directly at the enemy. Lincoln’s letter [with the obvious answers inserted in brackets] is set forth below:

My dear Sir: You and I have distinct, and different plans for a movement of the Army of the Potomac---yours to be down the Chesapeake, up the Rappahannock to Urbana, and across land to the terminus of the Railroad on the York River---, mine to move directly to a point on the Railroad South West of Manassas.

If you will give me satisfactory answers to the following questions, I shall gladly yield my plan to yours.

1st. Does not your plan involve a greatly larger expenditure of time, and money than mine? [Yes.]

2nd. Wherein is a victory more certain by your plan than mine? [Nowhere.]

3rd. Wherein is a victory more valuable by your plan than mine? [Nowhere.]

4th. In fact, would it not be less valuable, in this, that it would break no great line of the enemie's communications, while mine would? [It would.]

5th. In case of disaster, would not a safe retreat be more difficult by your plan than by mine? [It would.]

Yours truly

The elephant in the room was the fact that McClellan’s plan would strip Washington of its defenses and expose it to a direct attack from the Confederates.

When a witness under cross-examination believes that the short answer to a question will be harmful, the witness will engage in any number of evasive techniques, one of which is to give a long, self-serving dissertation which camouflages the lack of a direct response in a torrent of words. This may or may not have been McClellan’s objective when he answered the questions, but his lengthy response [reproduced at 5 Complete Works of Abraham Lincoln pp. 121-124] did fail to give direct answers to the questions.

Unfortunately for Lincoln’s plan, he was in the war room, not in the courtroom. Although he probably would have been able to get a jury to agree with him he was unable to goad McClellan into direct action.

Thursday, June 4, 2015


Sometimes a brilliant cross-examination is counterproductive. You should always be aware of your audience and tailor your questioning to their biases and preconceptions. The difference between a winning cross-examination and a disaster quite often has less to do with the answers you get than with the audience who hears them. 

Abraham Lincoln almost wrecked his political career with a brilliant series of questions which exposed the faulty logic used by his opponents. It was during his first and only term as a Congressman, and it came at a time when public enthusiasm for the war with Mexico was at a fever pitch. Lincoln did not share that enthusiasm, thinking that the war was ill-conceived and motivated by the desire to advance slavery by adding more states below the Mason-Dixon Line.

President Polk justified the war by saying that it was retribution for the spilling of American blood during an incursion of the Mexican army onto American soil. The only problem with the justification was that there were no Americans living at the location where the blood was shed; the location where the blood was shed was historically a part of Mexico; the army that was making the incursion was the American army, not the Mexican army; and the Americans who shed their blood in that location were invading American soldiers.

Frederick Trevor Hill, writing in Lincoln the Lawyer, described the situation like this:

There was a great chance for the orator and cheap patriot in the [excitement over the war] and Lincoln was urged to make the most of his opportunity and distinguish himself. But although he knew what was expected of him and what alone would satisfy his friends, and was well aware that no critic of his country is tolerated while its foes are under arms, he refused to compromise with his conscience and fought the government policy with all his might and main.
Then for the first time in his public life his power and training as a lawyer were called into play, and in a series of questions which no one but a skillful cross-examiner could have phrased he disposed of the casuistical explanations of the war.

President Polk, in his several messages to Congress, had repeatedly referred to “the Mexican invasion of our territory and the blood of our fellow-citizens shed on our soil,” and quoting these statements as his text, Lincoln introduced his now famous “Spot Resolutions,” wherein the President was requested to answer eight questions calculated to inform the House [of Representatives] whether the particular spot on which the blood of our citizens was shed was or was not at that time “our own soil.” There was no escape for the Executive from these questions: they were pertinent, penetrating, and not without a certain grave humor, and each was so drawn as to preclude the possibility of equivocation or evasion.
Moreover, they showed an historical knowledge of the facts which could not be trifled with, and no one supporting the governmental policy could possibly have answered them all without being caught in a contradiction:

“Resolved by the House of Representatives [they began]. That the President of the United States be respectfully requested to inform this House —

“First. Whether the spot on which the blood of our citizens was shed, as in his messages declared, was or was not within the territory of Spain, at least after the treaty of 1619 until the Mexican Revolution.

“Second. Whether that spot is or is not within the territory which was wrested from Spain by the revolutionary government of Mexico.

“Third. Whether that spot is or is not within a settlement of people, which settlement existed long before the Texas revolution and until its inhabitants fled before the approach of the United States Army.

“Fourth. Whether that settlement is or is not isolated from any and all other settlements by the Gulf and the Rio Grande on the south and west, and by wide uninhabited regions on the north and east.

“Fifth. Whether the people of that settlement, or a majority of them, or any of them, have ever submitted themselves to the government or laws of Texas or of the United States, by consent or by compulsion, either by accepting office, or voting at elections, or paying tax, or serving on juries, or having process served upon them, or in any other way.

“Sixth. Whether the people of that settlement did or did not flee from the approach of the United States Army, leaving unprotected their homes and their growing crops, before the blood was shed, as in the messages stated; and whether the first blood so shed was or was not shed within the enclosure of one of the people who had thus fled from it.

“Seventh. Whether our citizens whose blood was shed, as in his messages declared, were or were not at that time armed officers and soldiers, sent into that settlement by the military order of the President, through the Secretary of War.

“Eighth. Whether the military force of the United States was or was not so sent into that settlement after General Taylor had more than once intimated to the War Department that in his opinion no such movement was necessary to the defense or protection of Texas.”

No interpellation of a government was ever phrased in more telling questions. They were unanswerable, and the administration sought safety in silence.

Lincoln’s constituents, however, were not silent, and they let him know in no uncertain terms that they were not happy about how he had exposed the President’s disingenuous excuse for going to war. Realizing that he could not possibly win a second term in Congress, Lincoln declined to run for re-election and returned to his law practice in Springfield thinking that his career as a politician was over.

MORAL: The next time you plan a cross-examination, be sure ask yourself if the jury’s biases and preconceptions will prevent them from appreciating the brilliance of your proposed line of questioning.

Friday, May 29, 2015


Here are a couple reviews of the new edition:

Ethan Morris reviewed the second edition in this way:

This book really should be called The Cross-Examination Bible. Clark, Dekle and Bailey have done the heavy lifting, amassing the best strategies and techniques for any trial lawyer or student.

First and foremost, don’t be fooled by the name. This book teaches so much more than just how to question a witness on the stand—including the fundamentals of building a case theory, and turning it into a story that will resonate with a jury. In terms of cross-examination, no stone is left unturned. This book breaks it down, showing how to identify the purpose of a cross, preparing questions, and executing it effectively for the jury. Every technique is illustrated with real-life examples from masters such as Clarence Darrow, F. Lee Bailey, and Abraham Lincoln, through transcripts of some of their most famous trials.

I found the section on finding and using social media materials to impeach witnesses particularly illuminating, given how prolific people’s “digital” lives are becoming. This edition also features a great new section on visual storytelling, something that can make or break a case, including when and how to use photos, computer animations, charts or graphs.

In law school, I was an avid mock trial competitor. Oh that I wish I’d had this book then! As a new attorney starting my career in trial work, the Cross-Examination Handbook is one of the few textbooks that
not only will I keep, but will refer to again and again.

Stuart Stringer offered this review:

Cross-examination is a critical part of litigation practice and often can be daunting to prepare for. For me the great challenge of preparing for cross-examination lies in the fact that testimony and witnesses can be so unpredictable. The Cross-Examination Handbook does a great job of breaking down, preparing and building strategies for dealing with the unpredictability of testimony. This book is all about thorough, detailed and careful preparation, preparation that leads to success in the courtroom. The Cross-Examination Handbook is a tool that I have found incredibly powerful for my practice.

Friday, April 17, 2015


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.