Sunday, May 13, 2012
Horrible cross-examinations are ubiquitous. Every day of the court week, they take place on every floor of the courthouse. Seeing is believing, understanding and knowing what not to do.
For the first time, I added to my Seattle University Law School Comprehensive Trial Advocacy course a requirement that the students spend a day watching a trial and write a report on what they observed and learned. The students went to different courts – federal, state and municipal. They reported on the skillfulness that some lawyers displayed and the ineptitude of others. Their experiences in observing lawyers at work drove home points covered both in their class assigned readings, lectures and discussions about cross-examination. Here are some of the students’ observations and these are typical.
Student Colin K. - Know How to Impeach Under the Evidence Rules
Student Colin K. reported on his observations as follows: “During a cross-examination of a county commissioner by plaintiff’s attorney, the defense attorney was able to use the rules of evidence to almost completely derail his opposing counsel. Plaintiff’s attorney was being very rude to the witness, and was obviously trying to trip her up about something. The conversation involved the county’s budget and budget cuts. Plaintiff’s attorney brought up the commissioner’s depositions, and (he) was attempting to impeach her. However, it seemed that he was summarizing what she said in her deposition. The defense attorney objected to improper impeachment. This obviously irked the plaintiff’s attorney, who attempted to correct his mistakes. Defense attorney continued to object, and the objections continued to be sustained. At one point, plaintiff’s attorney had to read directly from the deposition, was red in the face, and argued directly to opposing counsel. By the end of the cross, it didn’t seem he was able to impeach the witness at all, and the jury seemed completely confused. I was surprised to see this from such an experienced litigator.”
Student Amanda L. – Alienation of the Jury’s Affections
Student Amanda L. reported on her observations as follows: “Ford’s cross-examination of Mr. C______ was not particularly effective. Rather, the way in which Ford’s attorney conducted cross turned the attorney into a very unlikeable character who seemed to embody everything society dislikes about attorneys. While it is true that, finally, at the end of his cross, the attorney got the answer he was digging for—that just a half a second difference could have changed the speed at which the collision occurred, putting it over 8 mph—the answer was achieved at a great cost to the attorney’s rapport with the jury. The Ford attorney made Mr. C______ do hand calculations over and over again while the jury waited, bored and impatient, and, it appeared to me, sympathizing with Mr. C______ and hating the Ford attorney.
The Ford attorney’s cross-examination of the second witness, David H_____, operations directors of the repair shop that repaired the Mustang in a previous collision, was largely the same. The Ford attorney tried to cover too many topics, tried to box the witness into a corner that didn’t make any sense, and, all the while, seemed a proper jerk harassing a nice guy, Mr. H____. “
Student Kevin M. – Minutia and the Interrogatory Question
Student Kevin M. attended the same trial as Amanda L. and reported on cross of a later witness Mr. H____ by the Ford attorney. Student Kevin M. wrote: “Similar to his strategy with C_____, the attorney for Ford was extremely rude to H____ during cross examination. During direct, H____ testified that he had never met any of the attorneys or plaintiffs prior to the law suit. Ford’s attorney pointed out that H____ had indeed met one of the plaintiff’s attorneys prior to trial. The attorney’s tone was completely condescending, and he acted like he just exposed H____ as a liar. The disputed point was extremely minor; therefore, Ford’s attorney came off looking like a jerk.
“One particularly devastating blow to Ford’s attorney happened when H____ mentioned the Ford Mustang’s second accident, the accident of this case. Ford’s attorney responded aggressively, ‘Oh, so how do you know there was a second accident?!’ H_____ responded, ‘Well, that’s how the young lady over there lost her eye.’ The courtroom fell silent for a long moment, and I think the attorney for Ford realized he was digging himself a grave.”
It was a treat to read the observations of these novices. They reaffirmed that there is no better teacher than experience. From their observations, these students will long remember what not to do when conducting cross.
Wednesday, May 2, 2012
A Barrister at Work
The day before yesterday, I was in Hong Kong. I broke away from my travel group to make a visit to the High Court. What started as a tourist’s brief detour ended up giving me opportunities to watch a skilled Barrister’s cross-examination and to visit with that Barrister.
A high profile murder trial was in session in Courtroom 24 of the High Court and as luck would have it I arrived just when the prosecutor was cross-examining the defendant. In essence, the defendant, a taxi driver, claims that he got in fight with the woman victim, strangled her, but never intended to kill her. He first said he thought she was unconscious from the strangulation but later changed his story at trial to say that he thought he accidentally had strangled her to death. In either event, he then dumped her body in the river. As it turned out this case is front page news in Hong Kong.
Barrister Audrey Campbell-Moffat’s (pictured here during a break in the murder trial) cross-examination employed many of the techniques described in Cross-Examination Handbook. Through the witness, Campbell-Moffat told the prosecution’s story that the defendant was angry at the victim because she had taken up with a new boyfriend and was breaking off any relations with the defendant. Using the concession-seeking method, Barrister Campbell-Moffat got the defendant to admit his anger and facts that made his story implausible, such as the defendant’s description of how the victim removed her tight jeans and knickers (not a word we use often) did not jibe with the condition of pants and knickers when they were found at the scene.
Barrister Campbell-Moffat was exceedingly polite in the British fashion, addressing the judge as “My Lord” and apologizing to the court for directing the judge and opposing counsel to the wrong photograph and so on. She boxed the defendant into a corner and then gave him a chance to explain away the illogical position he had taken. The vestiges of the British Court – wigs and robes for both the judge and counsel – were present.
Audrey was kind enough to invite me to join her for lunch in the room set aside for counsel. Over lunch, I learned about her prior experience as a Barrister in England and how she and her husband, also a lawyer, moved to Hong Kong to become permanent residents. Her full biography can be found here. She explained that there were only seven jurors because that was enough. Sometimes they may have nine. Like any good trial lawyer, she was able to tell me whom she believed would be the foreperson and how she thought the jurors were leaning. When I asked why the judge jumped in so often to ask follow-up questions, she explained that she has had prior experience trying cases with the judge and he felt comfortable knowing that she would be fine with the interjections. She explained that she had not asked accusatory questions because she knew the judge well enough to be able to gage that it was not time to take a more aggressive approach.
All in all, this experience of observing a talented Barrister conduct a cross and visiting with her afterwards were highlights of the trip.