Wednesday, June 1, 2011
F. LEE BAILEY’S POINTERS ON CROSS-EXAMINATION
The Importance of Eye Contact, Pacing and the Contradiction Technique
Whatever else you otherwise think of F. Lee Bailey, he was a master of cross-examination. In Cross-Examination Handbook, we use his impeachment of Detective Mark Furhman as an illustration of the Contradiction Technique. Watch the video at the bottom of this page to see Bailey at work in clips of his cross-examinations in the O. J. Simpson case. The following are some of the pointers Bailey made when he lectured on cross and some observations about those tips:
1. Lies in the Eyes: Bailey emphatically taught that you should never take your eyes off of the eyes of the person you are cross-examining because they are the window into the witness’s mind. They will tell when the witness is fudging or outright lying. If the person is a practiced liar, he points out that their expression never changes. As you watch the video clips of his cross-examinations, you can see him adhering to this principle.
To maintain eye contact, Bailey said the cross-examiner must cross-examine without notes. Leave your notes behind and only if you must go to counsel table and check them before resuming the cross. While eye-to-eye contact is critical, the vast majority of trial lawyers should have their notes in front of them or nearby. Why? Because they are not F. Lee Baileys. Most lawyers who attempt cross-examination without notes fail. They move from subject to subject, becoming impossible to follow. They repeat what was covered during direct, giving strength to the other side’s case. They fail to take advantage of the opportunity that cross-examination provides to tell the examiner’s story of the case and emphasize the cross-examiner’s themes.
Eye contact can be maintained while using notes of the type we describe in the Cross-Examination Handbook because they are simple and easy to reference. Counsel merely glances at the notes when necessary, then looks the witness in the eyes while both asking the question, listening to the answer and asking follow-up questions.
2. Pacing: F. Lee Bailey lectured about keeping 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 pointed 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 the expert 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.
3. Contradiction: Another Bailey tip is that cross-examination is an opportunity to pin down the witness on something where the witness knows that you may have or could get the answer. Bailey stressed the importance of remedial investigation during the course of a trial to find out new information, such as a witness who can contradict the witness whom the lawyer cross-examined. The tactic that Bailey resorted to in examining Furhman about the racial slur was to have Furhman declare that if anyone came to court and testified that he had uttered the slur, the witness would be a liar. This tactic is referred to a “pitting” and it has been held by some courts to be improper because the question asks the witness to express an opinion about the credibility of a witness, which is in the province of the jury to decide. In Cross-Examination Handbook we discuss how to avoid this error and still emphasize the contradiction during cross-examination.
4. O. J. Didn’t Do It: One more point that F. Lee Bailey tried to make when he lectured was that his client, O.J. Simpson didn’t do it. We disagree.
As mentioned, cross-examination notes designed for easy reference and a fuller discussion of the contradiction techniques and applicable law are contained in Cross-Examination Handbook. To purchase or for an examination copy click here.