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.

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