Friday, January 19, 2018

JURY SELECTION HANDBOOK: COMPANION TO CROSS-EXAMINATION HANDBOOK





















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

TURNING POINTS AT TRIAL AND CROSS-EXAMINATION: A BOOK REVIEW

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.


Monday, January 8, 2018

IMPEACHMENT CROSS-EXAMINATION – IT’S NONSENSE

Impeachment cross-examination helps to build your case theory only in a negative way, by eliminating competition from the opposition’s theory. As we have previously noted, a cross that reveals that the witness’s testimony is essentially nonsense is one way to impeach.

If you can demonstrate that the witness is saying something illogical, you have gone a long way toward impeaching the witness. In a horrific domestic violence case tried a few years ago, a man claimed that his wife had received her injuries by jumping from a moving car. He explained that she had been high on drugs and acting out in bizarre fashion for the past two weeks. The problem with his story, which was pointed out quite well on cross examination, was that he and his wife had just the previous night arrived in Florida on a commercial flight from Nevada. One fertile area of cross examination proved to be a line of questions on how his severely drug impaired wife got through the TSA screening to get on the plane. The defendant also had some difficulty explaining why, after his wife jumped from the moving car, he took her home, hogtied her, and stuffed her in a closet rather than taking her to the emergency room.

Wednesday, December 27, 2017

CROSS-EXAMINATION: LESSONS OF A LIFETIME

Trial lawyer Henry G. Miller promulgated rules that should govern cross-examinations based on his lifetime in court. Miller’s four  rules come with some notable exceptions. The following is what Mr. Miller says about these rules and the exceptions to them in his book On Trial: Lessons from a lifetime in the courtroom, ALM Publishing, New York 2001, pages 58-59:

“FOUR RULES (with a “But”)

“1.       Don’t Repeat Direct. This is the most common mistake of the apprentice. The direct covers ABC. The cross covers ABC. All that does is reinforce the direct. Rather, on cross we should go for what wasn’t covered on direct. Sometimes they don’t cover what they’re afraid of.

“On direct, they never asked their own janitor about prior complaints. Go for it. Of course, we must be wary of traps. I said, ‘Don’t repeat the direct.’ But, there’s an exception: make a witness repeat a pat rehearsed statement to establish its falsity.

“For example, when the defendant’s construction foreman who has an eighth-grade education says, ‘We had a perfect safety record neither blemished nor tarnished by prior incident and therefore we were never on notice of a dangerous condition,’ please have him repeat that.

“2.       Don’t Be Long.  Everybody knows the first rule of cross is to sit down. ‘No questions’ can be very effective. Don’t ask more questions than you must.

“But we all know of witnesses who enthrall jurors at first. It takes time to discover their true nature. Mr. Pharmacist was upright, splendid and impeccable for the first two days of cross. After a lengthy and sustained review of all his records by the plodding cross-examiner, Mr. Pharmacist finally admitted he changed the records of the prescription prior to the lawsuit.

“Occasionally, it takes time to capture the quarry.

“3.       Don’t Ask Why. That’s elementary. That’s like asking an enemy expert for his reasons.

“But sometimes when the witness is cornered there is no better question. First, we must make sure all escape routes are tightly closed. ‘Why didn’t you come to the emergency room when called?’ It was know that the doctor wasn’t operating and that he wasn’t busy, but is was also known that he wasn’t there because he had a personality conflict with nurse in the E.R. Why, indeed, didn’t he come?

“’Why’ can be a great weapon, but perhaps it’s best left to the more experienced hunter.

“4.       Don’t Be Nasty. A soft word turneth away wrath. A smile can disarm the most hostile witness. Be courteous and fair to all witnesses and by your decency carry the jury with you. I believe these sentiments and try to practice them.

“But I must admit that some bristling nasty cross-examiners are stupendously successful. They know when to pounce and when not. These Tartars thrive on nastiness. Some would say they couldn’t be anything but trial lawyers. And, jurors, perhaps bored with their own lives, love it. MORAL: No rule is absolute.

“The judge calls again, ‘Mr. Shakey, are you ready to cross-examine?

“Shakey rises and with cool distain stares at the witness. ‘Mr. Exaggerator, do you mean to tell me that. . .?”          


This and other rules for cross-examination can be found here.

Saturday, December 23, 2017

THE CROSS-EXAMINER’S DEMEANOR

We have previously discussed how to behave on cross and that discussion of the cross-examiner’s deportment is worth revisiting. The do’s and don’ts of how to behave during cross-examination are as follows:

Don’t Show the Damage
You asked the “Why” question on cross-examination and paid the consequences. You opened the door for the expert witness to expound on the other side’s case theory. You wish you could go hide under counsel table. But, that’s not an option.
Don’t let the jury see you bleed. Remain calm, and don’t let the damage register on your face. The jurors are constantly watching you. If you reveal how much the witness’s answer hurt, it will just compound the harm. Even worse, your crushed reaction may turn the jury against you and your client. It’s to your advantage to maintain a poker face.

Don’t Be Cross and Don’t Get Ahead of the Jury

Axiom for cross-examination: You don’t have to be cross to cross-examine. James W. McElhaney in McElhaney’sTrial Notebook put it this way when discussing quarrelling with a witness on cross: “. . . Once again, the hallmark of poor cross-examination is arguing over unessential details.

“Part of the problem of the needless quarrel is the demeanor of the cross-examiner. Usually it is not a good idea to ask questions in an accusatorial manner. The jury has a lot of sympathy with the person in the witness box. The advantage of the lawyer in being able to ask questions and insist on answers to them is obvious to the jury. Unnecessary hostility is likely to backfire.

“Yet there may be a time for a raised eyebrow, a series of rapid fire questions or even righteous indignation. To some extent the jury gets its cue from counsel how to respond to the testimony, and you should not neglect this role. The problem is to strike the proper balance without putting on a transparent act. One good way to approach this balance is to keep from being hostile with a witness even one you know is lying, unless the jury can see you have a good reason for it.”

Another way to express this principle is: Never get ahead of the jury. In other words, don’t go after a witness harshly unless you are convinced the jury thinks the witness deserves it.

Don’t Be Nasty

In On Trial: Lessons from a Lifetime in theCourtroom, Henry G. Miller states: “A soft word turneth away wrath. A smile can disarm the most hostile witness. Be courteous and fair to all witnesses and by your decency carry the jury with you. I believe these sentiments and try to practice them.”

Do Be a Seeker of Truth and Show It

The proper demeanor for the cross-examiner is to be professional and a seeker of truth. As a seeker of truth, you may ask tough questions. While jurors do sympathize with witnesses who are being subjected to cross, witnesses differ and so must the cross-examiner’s demeanor. When cross-examining the vulnerable witness, such as a child, counsel’s manner normally should be solicitous. On the other hand, when cross-examining an expert witness, particularly one who is gives evasive answers, counsel’s demeanor may be more assertive. Again, never get out ahead of the jury.

Do Be Confident


Henry G. Miller in On Trial offers another sound piece of advice: “Act Like You’re Getting Somewhere. Great cross-examiners always act as if they’re getting somewhere. They start smartly. They finish smartly. They exude confidence. They seem to find guilty inferences in every answer, no matter how innocent.”