Saturday, October 26, 2013

CROSS-EXAMINATION – THINK BIG

No cross-examination is more ineffective than one that dwells on minutia. A cross that focuses on inconsequential matter neither builds the cross-examiner’s case nor undercuts the other side’s case. It serves no purpose. It can be tedious. And, it can damage the credibility of the cross-examiner.

Henry Miller, a seasoned trial attorney put it this way in On Trial: Lessons from a Lifetime in the Courtroom:
Don’t Quibble. Mr. Bicker assumes all jurors have advanced degrees in engineering. He pursues witnesses in search of ‘inches.’ ‘You say it was three feet form the corner. Might is have been three feet and four inches?’ Then, he argues in summation that under the Euclidean laws of eternal calculus it would be impossible for the sun to shine unless the answer was three feet and four inches.

“Or, ‘You say Mrs. Verdi was wearing a green dress. Are you prepared to swear it was not a pale shade of olive. . .

“If we shouldn’t quibble, what should we do? We should:

Go for the Whales: Seek out the big issues. Forget the minnows. Jurors do not decide cases on a thousand little points. They want to hear what’s crucial.

“It doesn’t matter where the front wheels were, if the driver had too much to drink. . .

“Go for the big issue, the critical point that will decide the case. You may not win but the jury will neither squirm nor laugh. And at least you won’t lose it on cross.”

The trial lawyer’s sage James W. McElhaney in McElhaney’s Trial Notebook stresses the need to concentrate on major points given the jury’s attention span: “People have limited attention spans. It is said that television (with its interruptions for advertisements) has created 20-minute cycles in people’s minds so they cannot absorb more than that at any one time. Whether that is literally true is not important. It emphasizes a good point: A short, coherent cross-examination will be more effective than a long, rambling one that makes as many (or more) good points.”

Our Cross-Examination Handbook offers concrete advice on how to find the big fish and then reel them in.

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