5 FAVORITE BOOKS ON CROSS-EXAMINATION

What follows is a list of five of my favorite books on cross-examination. These books are not strangers to this blog that concentrates on the art and science of cross-examination because I have blogged about them before. Below you will find the five favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to the full articles should you wish to visit them. 

#1—The Art of Cross-Examination by Francis L. Wellman

Naturally, at the top of the list is Francis Wellman’s The Art of Cross-Examination. Wellman was a turn-of-the-twentieth-century New York prosecutor is reputed to have litigated more than 1,000 jury trials over the course of a 30-year career at the bar. During that time, he gained a well-deserved reputation as a deadly cross-examiner.

I’ve blogged about Wellman’s book a couple times, including: “Fourth Commandment of Cross-Examination” that discusses the concept of never asking a question to which the questioner does not know the answer. Here’s an excerpt from the blog:

The concept of never asking a question on cross unless you knew the answer did not originate with Irving Younger. Francis Wellman in his seminal work on cross-examination, The Art of Cross-Examination, stated the rule and expressed it better a long time before Younger. On page 23 of the 1936 edition of Wellman’s book, which was first published in 1903, it states:

“David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, ‘A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place, he didn’t care.’ This is somewhat on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greater blunders in cross-examination. Certainly, no lawyer should ask a critical question unless he is reasonably sure of the answer.”

#2—McElhaney’s Trial Notebook by James W. McElhaney

The article “Organized Effective Cross-Examination” drew upon McElhaney’s Trial Notebook that discusses how to craft a cross-examination that is organized into a dynamic and persuasive presentation, as follows: 

James W. McElhaney, the trial lawyers’ sage, explained this principle as follows: “It is the theory of the case, then, that provides the starting point for organizing cross-examination. If we once again take organization in the broader sense – content as well as order – the first question is not just what to include, but whether to cross-examine a witness at all.

“The obvious answer is, do not cross-examine a witness unless it would help the case to do so. The only difficulty with that is knowing when it would help the case.

“Understandably, it is a point about which thoughtful lawyers can disagree. There are some, for example, who are quick to say, ‘no questions.’ And there are some far more who ought to follow their example.”

The primary goal of cross-examination is to either bolster your case theory or undermine your opponents. And,  the focus of the concession-seeking cross should be on making main points, not exploring minutia.

#3—Examining Witnesses by Michael E. Tigar

In an article on “How to Start a Cross-Examination,” I quoted Tigar’s words of wisdom from Examining Witnesses:

“To begin (cross-examination) strong you must choose an area in which the witness will agree with you. Preferably, the witness will also want to agree with you. What do I mean “want to”? If you are going to cross-examine a police officer on a defect in his report, you will begin by establishing how careful a report writer the witness is. The witness wants to tell you this.

“Face the witness. Smile at the witness. The smile need not be friendly, but it must be polite. Remember, you want this witness to agree with you. You will see British barristers take a superior attitude toward the witness, lofty and disdainful. You will see American lawyers – real or on television – sneering and snarling. Don’t do any of that. With whom will the jury identify in a contest between a witness who is just sitting there and a snarling, sneering, supercilious lawyer? Oh, maybe later, when the jury is brought along to your point of view, you can change mien. But, for now, a polite smile.”

#4—Winning at Cross-Examination by Shane Read

In this Cross-Examination blog space, I wrote a review of Shane Read’s book on cross- examination that reads, in part, as follows:

Shane Read never disappoints his readers, and this is certainly true with his book Winning at Cross-Examination: A Modern Approach for Depositions and Trials. As someone who has written a book on cross-examination—Cross-Examination Handbook: Persuasion, Strategies, and Techniques, perhaps I should be jealous and critical. I’m not and won’t be. His book is splendid, proving that you can never write enough about activity that demands thorough preparation and has accurately been described as involving both science and art.

I must admit that I am a fan of Read’s books,  having reviewed his book Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills, which is on a par with his prior award-winning books Winning at Deposition and Winning at Trial.

The book is divided into three parts as follows: (1) cross-examination skills and strategies; (2) skilled trial lawyers, Tom Girardi and Mark Lanier, reflect on crosses in their notable trials; and (3) discussions of cross-examinations in the O.J. Simpson and George Zimmerman trials. Also, in part 3 is a stage reading on Broadway of a cross-examination in the case against 8, which was the challenge to the California proposition that marriage is only between a man and a woman. . .

#5—Cross-Examination Handbook: Persuasion, Strategies, and Techniques by Ronald H. Clark, George R. Dekle, Sr. and William S. Bailey

And, of course, saving the best for last is our book—Cross-Examination Handbook.

BOOK REVIEW: WINNING AT CROSS-EXAMINATION

Shane Read never disappoints his readers, and this is certainly true with his book Winning at Cross-Examination: A Modern Approach for Depositions and Trials. As someone who has written a book on cross-examination—Cross-Examination Handbook: Persuasion, Strategies, and Techniques, perhaps I should be jealous and critical. I’m not and won’t be. His book is splendid, proving that you can never write enough about activity that demands thorough preparation and has accurately been described as involving both science and art.

I must admit that I am a fan of Read’s books,  having reviewed his book Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills, which is on a par with his prior award-winning books Winning at Deposition and Winning at Trial.

The book is divided into three parts as follows: (1) cross-examination skills and strategies; (2) skilled trial lawyers, Tom Girardi and Mark Lanier, reflect on crosses in their notable trials; and (3) discussions of cross-examinations in the O.J. Simpson and George Zimmerman trials. Also, in part 3 is a stage reading on Broadway of a cross-examination in the case against 8, which was the challenge to the California proposition that marriage is only between a man and a woman. You can watch that here.

Shane Read has collected other videos of effective cross-examinations that are on his website www.winningatcross.com  You need only enter the password that is on the last page of the index in the book.

Read believes, as I do, that the best way to learn how to be an effective cross-examiner is to watch a skilled trial lawyer at work. Ideally this would be by second chairing a case with that lawyer. A secondary way is to read transcripts and watch videos of good trial lawyers doing cross-examinations. Sections (2) and (3) are designed to help the reader accomplish this goal. As Picasso said, “Good artists copy, great artists steal.”

One grand feature of the book is its marginalia. They include these boxes in the margin: Chapter Road Maps; Practice Tips; and Quotations (Mark Twain’s “An expert is a person hired to divorce yourself from your common sense.). Also nice are the checklists at the end of the chapters.

I wholeheartedly recommend this book to you as a book that you should add to your library along with Cross-Examination Handbook.

NEW TRIAL BOOK: SIX CAPSULES: THE GILDED AGE MURDER OF HELEN POTTS-- BOOK REVIEW

George R. (Bob) Dekle, Sr. has done it again. He has written Six Capsules:  The Gilded Age Murder of Helen Potts. It is another splendid book by Bob—this time a “true crime book” that recounts the poisoning of Helen Potts by Carlyle Harris and the high profile murder trial of Harris in the late 19^th century.

Bob’s prestigious list of prior books, among others, includes: Cross-ExaminationHandbook: Persuasion, Strategies, and Techniques (which I co-authored along with William Bailey); The Last Murder: The Investigation, Prosecution, and Execution of Ted Bundy (2011); The Case against Christ: A Critique of the Prosecution of Jesus (2011); Abraham Lincoln's Most Famous Case: The Almanac Trial (2014); Ted Bundy, Celebrity Slayer (2014 Kindle ed.); The Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann; Chronicles of Crime and Criminals: Thirty Two Years in the Courtroom (2017 Kindle ed.); and Prairie Defender: The Murder Trials of Abraham Lincoln (2017).

New York assistant district attorney Francis L. Wellman, who prosecuted Harris, was a familiar character to Bob Dekle because Wellman wrote the second best book on cross-examination entitled The Art of Cross-Examination, second only to Bob’s Cross-Examination Handbook. Notable is the fact that The Art of Cross-Examination is still in print, and, despite its somewhat archaic language, it is still filled with excellent advice regarding how to conduct cross-examinations.

A highlight in Six Capsules is Bob’s description of Harris’s cross-examination of a defense expert witness Dr. Horatio Wood along with Bob’s observations about how Harris conducted the cross. Carlyle Harris was a young medical student who was alleged to have poisoned Helen Potts with morphine to prevent disclosure of the fact that he had convinced her to secretly marry him under assumed names.

Dr. Horatio Wood of the University Hospital in Philadelphia was the defense witness expert upon whom the defense case rested. On direct examination, Wood in essence testified that given that the body had been embalmed and buried for a length of time, it was not possible to determine the cause of death and that her symptoms were “compatible with various conditions.”

I can’t do justice here to either how Bob describes Wellman’s cross of Wood or Bob’s analysis of Wellman’s strategies and skills as a cross-examiner. Suffice it to say, Wellman did the following:

·      Challenged Wood’s opinion that morphine poisoning could not be diagnosed based upon symptoms.

·      Took advantage of Wood’s assertion that a definitive diagnosis could not be reached based upon symptoms but a physician confronted with them would come to a working diagnosis she had been poisoned.

·      Attacked Wood’s qualifications—Wood had seen only one case of morphine poisoning and that was 20 years before the Harris trial.

·      Examined Wood with a portion of his book in which he stated: “I have thought that inequality of pupils is proof that a case is not one of narcotism; but Professor Taylor has recorded an instance of opium-poisoning in which it occurred.” Then, Wellman confronted Wood with the fact that Taylor’s case involved a man with one eye. (This was followed with laughter from the spectators.)

·      Wellman concluded with “You may go back to Philadelphia, sir.”

Bob Dekle is a meticulous researcher, and he reported what the newspapers said of Wood’s trial performance under Wellman’s cross, as follows:

“The Herald reported that when Jerome dismissed Wood from the witness stand, the doctor ‘hurried away from the witness stand with that pained expression sometimes visible on the face of a picnicker who sat on an anthill.’ Upon Wood’s return to Philadelphia, he remarked that he had ‘gone to New York only to make a fool of himself.’ . . .”

To get both the full enjoyment of a true crime history book and insights into effective trial practice, particularly cross-examination, read  Six Capsules.

DON’T LEARN CROSS-EXAMINATION BY THE SINK OR SWIM METHOD

Learning Cross-Examination Techniques by Experience

Don’t learn cross-examination skills by trial and error in trial – the sink or swim method. It is not unusual for fledgling trial lawyers to learn by trial and error in trial. The downside is this sink-or-swim schooling in cross-examination can be not only the drowning of the cross-examiner but also someone else.  

Another method is to practice cross-examination in professional development workshops or in law school classes where no one is hurt in the process.  Cross-Examination Handbook offers opportunities for cross-examinations in two criminal cases that can be used in either law school or prosecutor or defense counsel workshops.

Case Files, Actors’ Guide and Teacher’s Manual

Cross-ExaminationHandbook comes with all the materials necessary for role-play performance exercises for cross-examination strategies and skills, including: case files; an Actors’ Guide with instructions for the witnesses, and a Teacher’s Manual (100 pages) covering how to conduct the cross-examination exercises as well as a schedule for professional development workshops and a syllabus for law school classes. The two criminal cases are State v. Gary Goodman and State v. Byron Ward Howland. Both fact patterns are based on actual cases.

State v. Gary Goodman

Gary Goodman and his brother Barry went to the Infernal Club for an evening of dancing.  Gary Goodman had a .38 caliber revolver in his coat pocket.  While they were inside the Infernal Club, Barry Goodman became engaged in a “staring” contest with Moe Helton, a local drug dealer who had a history of bad blood with Barry.  The staring contest escalated into a confrontation, and the confrontation escalated into a fistfight.  Barry came off second in the fistfight and Helton began to get the best of him.

Gary Goodman, who had been dancing on the dance floor, noticed the altercation and went over to intervene.  Goodman drew the revolver from his pocket and began shooting.  John Elder, a business associate of Helton in the drug trade, attempted to intervene in the fight, trying to disarm Gary.  Gary shot Elder in the stomach.  When Gary shot Elder, Shemp Campbell, another drug associate of Helton, also intervened and was able to disarm Gary Goodman.  When Goodman was disarmed, he and his brother fled the Club.  Moe Helton was pronounced dead on arrival at the Lincoln County Hospital, and John Elder underwent emergency surgery to repair the damage done to his stomach by the bullet.  Barry Goodman was treated at Riverton Hospital for trauma suffered in the fight with Helton. Gary Goodman is charged with murder in the second degree, attempted murder in the second degree, and carrying a concealed firearm. 

State v. Byron Ward Howland

State v. Byron Ward Howland is a high profile criminal case. The Lincoln County Prosecutor’s Office has charged state legislator Byron Howland with rape in the second degree, communicating with a minor for immoral purposes through electronic communication and three counts of child rape in the third degree.

The prosecution contends that Howland is an Internet predator who lured in 15 year-old Jenny Sells first through talks in a chat room and later by inviting her to his condominium where he resided when he is attending a legislative session is the state capitol of Georgetown. Allegedly, Howland raped her in his condo in December two years ago. Afterwards he expressed remorse, and their relationship continued until June last year when Jenny’s mother took printouts of their Internet exchanges to the Georgetown Police Department’s Detective Bill Hutchinson. Jenny told the Detective about her relationship with Howland. Howland has made no pretrial comments about the case except that it is “patently false.”

The Assignments   

The law school class or CLE workshop assignments for cross-examination correspond to chapters of Cross-Examination Handbook and provide practical experience in the areas covered by the chapters. For example, chapter 6 covers how to impeach a witness with a prior inconsistent statement and assignments and Case File materials are provided so that law students and practicing lawyers can perform such an impeachment with. The versatility of the materials allows the instructor to select as many or as few of the assignments for the students/attorneys to perform as the instructor wishes to cover.

Each assignment comes with suggested reading, which the instructor may assign. For instance, the instructor may assign readings in Cross-Examination Handbook to which the assignment is cross referenced with suggested selected readings for each assignment. 

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.