Sunday, March 4, 2018


Learning Cross-Examination Techniques by Experience

Don’t learn cross-examination skills by trial and error in trial – the sink or swim method. It is not unusual for fledgling trial lawyers to learn by trial and error in trial. The downside is this sink-or-swim schooling in cross-examination can be not only the drowning of the cross-examiner but also someone else.  

Another method is to practice cross-examination in professional development workshops or in law school classes where no one is hurt in the process.  Cross-Examination Handbook offers opportunities for cross-examinations in two criminal cases that can be used in either law school or prosecutor or defense counsel workshops.

Case Files, Actors’ Guide and Teacher’s Manual

Cross-ExaminationHandbook comes with all the materials necessary for role-play performance exercises for cross-examination strategies and skills, including: case files; an Actors’ Guide with instructions for the witnesses, and a Teacher’s Manual (100 pages) covering how to conduct the cross-examination exercises as well as a schedule for professional development workshops and a syllabus for law school classes. The two criminal cases are State v. Gary Goodman and State v. Byron Ward Howland. Both fact patterns are based on actual cases.

State v. Gary Goodman

Gary Goodman and his brother Barry went to the Infernal Club for an evening of dancing.  Gary Goodman had a .38 caliber revolver in his coat pocket.  While they were inside the Infernal Club, Barry Goodman became engaged in a “staring” contest with Moe Helton, a local drug dealer who had a history of bad blood with Barry.  The staring contest escalated into a confrontation, and the confrontation escalated into a fistfight.  Barry came off second in the fistfight and Helton began to get the best of him.

Gary Goodman, who had been dancing on the dance floor, noticed the altercation and went over to intervene.  Goodman drew the revolver from his pocket and began shooting.  John Elder, a business associate of Helton in the drug trade, attempted to intervene in the fight, trying to disarm Gary.  Gary shot Elder in the stomach.  When Gary shot Elder, Shemp Campbell, another drug associate of Helton, also intervened and was able to disarm Gary Goodman.  When Goodman was disarmed, he and his brother fled the Club.  Moe Helton was pronounced dead on arrival at the Lincoln County Hospital, and John Elder underwent emergency surgery to repair the damage done to his stomach by the bullet.  Barry Goodman was treated at Riverton Hospital for trauma suffered in the fight with Helton. Gary Goodman is charged with murder in the second degree, attempted murder in the second degree, and carrying a concealed firearm. 

State v. Byron Ward Howland

State v. Byron Ward Howland is a high profile criminal case. The Lincoln County Prosecutor’s Office has charged state legislator Byron Howland with rape in the second degree, communicating with a minor for immoral purposes through electronic communication and three counts of child rape in the third degree.

The prosecution contends that Howland is an Internet predator who lured in 15 year-old Jenny Sells first through talks in a chat room and later by inviting her to his condominium where he resided when he is attending a legislative session is the state capitol of Georgetown. Allegedly, Howland raped her in his condo in December two years ago. Afterwards he expressed remorse, and their relationship continued until June last year when Jenny’s mother took printouts of their Internet exchanges to the Georgetown Police Department’s Detective Bill Hutchinson. Jenny told the Detective about her relationship with Howland. Howland has made no pretrial comments about the case except that it is “patently false.”

The Assignments   

The law school class or CLE workshop assignments for cross-examination correspond to chapters of Cross-Examination Handbook and provide practical experience in the areas covered by the chapters. For example, chapter 6 covers how to impeach a witness with a prior inconsistent statement and assignments and Case File materials are provided so that law students and practicing lawyers can perform such an impeachment with. The versatility of the materials allows the instructor to select as many or as few of the assignments for the students/attorneys to perform as the instructor wishes to cover.

Each assignment comes with suggested reading, which the instructor may assign. For instance, the instructor may assign readings in Cross-Examination Handbook to which the assignment is cross referenced with suggested selected readings for each assignment. 

Sunday, February 25, 2018


Or Better Yet – Ten Cross-Examination Guidelines

The late, great Professor Irving Younger (whose CLE videotapes are still gems and worth viewing) gave us the ten commandments of cross-examination. He could talk all day about them, using memorable and humorous illustrations. We cover these commandments in Cross-ExaminationHandbook.

Professor Younger threatened to haunt his listeners if they ever violated one his ten commandments. These ten commandments are still viable and important:
1.   Be brief.
2.   Short questions, plain words.
3.   Always ask leading questions.
4.   Don’t ask a question, the answer to which you do not know in advance.
5.   Listen to the witness’[s] answers.
6.   Don’t quarrel with the witness.
7.   Don’t allow the witness to repeat direct testimony.
8.   Don’t permit the witness to explain answers.
9.   Don’t ask the “one question too many.”
10. Save the ultimate point of your cross for summation.

The core reasoning behind these ten commandments is that if you adhere to them, you will control both the witness and the information delivered to the jury. If you lead, you provide the answer. If you know the answer, only the information you want the jury to hear will be heard. Follow these commandments and you are testifying. Break them, and suffer the consequences.

The ten commandments are valuable today, and should be reviewed before any trial. However, rather than being ten commandments, think of them as ten guidelines. There are times you may vary from them without suffering and there are times you should break a commandment.

Don’t Always Ask Leading Questions:  If you ask only leading questions, you may appear to be unfairly restricting the witness; not allowing the witness any latitude. You can loosen the reins if the answer couldn’t make any difference. Under certain circumstances discussed in Cross-Examination Handbook, you can even ask that “Why” question. Also, when the witness is fabricating, sometimes you should let go of the reins altogether and let the witness run. When the witness is lying and the examiner can prove the lie, non-leading questions are appropriate. In the Handbook, we go into how to expose a liar.

If the Situation Calls for It, Quarrel with the Witness: The demeanor of the cross-examiner and how questions are formed should vary depending upon the type of witness. While jurors will tend to be protective of a lay witness, who like the jurors is unaccustomed to a courtroom, they will tolerate and even expect that the lawyer will mix it up with a professional expert witness. The cross-examiner must adjust to the situation.

It Isn’t Always Necessary to Know the Answer Before Asking: Francis Wellman in the Art of Cross-Examination put it better when he wrote,  “A lawyer should never ask a witness in cross-examination a question unless in the first place the lawyer knows what the answer would be or in the second place didn’t care.”

What’s That Question?: “Avoid one too many questions,” commands Younger. Would any of us ask one too many questions if we knew which question was one too many? What does this commandment mean?

Younger’s ten points remain presumptive guidelines, and may only be ignored when a good reason exists.

Friday, January 19, 2018


Carolina Academic Press has just published JurySelection Handbook: The Nuts and Bolts of Effective Jury Selection (374 pages) by Ronald Clark and Thomas O’Toole. 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 is a companion to Cross-Examination Handbook because jury selection and cross-examination are the most challenging of trial skills.

The book offers two perspectives on the principles and practices for conducting jury selection: that of a trial advocacy professor, who has extensive trial experience as well as trial advocacy training, and that of a jury consultant, who has picked over 200 juries across the country in state and federal courts on a wide variety of civil and criminal matters with exposure up into the billions.

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 provides role-play jury selection assignments for both a civil and a criminal case that can be utilized in law school trial advocacy and clinic courses and in lawyer CLE or in-house law firm professional development training sessions.

Robust online appendices provide examples of jury questionnaires, motions and responses to motions relating to jury selection, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.

Jury Selection Handbook, like the Cross-Examination book dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for lawyers who are acquiring their jury selection skills, veteran trial lawyers who want to refresh and expand their approaches and law students. In essence, this book provides a comprehensive view of the jury selection process that can help all attorneys get a better perspective on the strategic choices available to them at every step of the process.

Monday, January 15, 2018


Shane Read has done it again; he has written another must-read book for lawyers and law students. Read’s latest book is Turning Points at Trial: Great Lawyers ShareSecrets, Strategies and Skills. This new work is on a par with his prior award winning books Winning at Deposition and Winning at Trial.
        Turning Points at Trial delivers exceptional trial strategies and techniques regarding cross-examination along with other phases of trial. Shane Read recruited superb trial lawyers to help with his project and set about interviewing them. Each of those talented lawyers was asked to share the trial skills that turned the trial in their client’s favor. Read gathered transcripts from these lawyers and included excerpts from those transcripts in the book to illustrate the particular trial skills under discussion. Also, Read wanted the ideas in the book to stick with the reader, and this determined which cases he included in his book. Read expressed it this way: “Learning trial skills from great lawyers in the context of these fascinating cases makes them easier to learn and more memorable.”
        Here is an example of how turning points in trial are discussed in the book. Chapter 8 Wage Guerrilla Warfare with the Expert”, which is in the part of the book dedicated to cross-examination “begins with an introduction to the trial lawyer and the case that will be used to illustrate the trial techniques covered in the chapter. The attorney is Robert S. Bennett, whom Read describes as “one of the country’s finest criminal defense attorneys and crisis management lawyers for corporations.” Following a description of Bennett’s background and the prominent clients he has represented, the chapter provides a synopsis of Zapruder v. United States, the case involving an arbitration of the government’s dispute with Zapruder over the appraisal of the film showing the assassination of John F. Kennedy. Next, Read lays out Bennett’s strategies and techniques including: setting up cross-examination in opening statement and cross-examination principles, such as narrowing cross to one or two points – “less is more”, looking for ways to make the expert look weak or not knowledgeable, and how to use the pitch of your voice when asking a question to indicate doubt or demand an agreement. For the rest of the chapter, Read employs excerpts from the transcript of the Zapruder trial to illustrate the strategies and techniques already discussed plus others. Finally, the chapter concludes with a “Chapter Checklist” summarizing: Bennett’s trial strategies; Bennett’s tips for cross-examination; Bennett’s strategies for cross-examination of expert witnesses; Bennett’s insights for hiring expert witnesses; Summary of cross of Macauley (the government’s appraisal expert); Summary of the cross-examination of Staszyn (another government appraisal expert), and Bennett’s advice for closing argument. Read’s utilizes this approach for each chapter and it is both thorough and engaging.
        In addition to covering every aspect of trial work, Turning Points for good measure has chapters on “Depositions” and “Appellate Oral Argument.” Turning Points is Shane Read’s latest engaging masterpiece on trial and appellate advocacy. Those chapters in the book that are devoted to cross-examination are excellent.