WITNESS PREPARATION FOR CROSS-EXAMINATION

 

Even when opposing counsel is equipped with the skills and strategies covered in Cross-Examination Handbook, they will not have enough to do damage to the credibility of a tough witness. A tough witness is one who is armed with the truth and has been thoroughly prepared to testify at trial. 

What is entailed in the thorough preparation of a witness for cross-examination? The following is an indispensable checklist along with notes for thorough and effective witness preparation that you can use when you prepare your witness. And, when you come up against the tough witness, you know that opposing counsel has relied upon a similar checklist. 

 Preparation for the courthouse and courtroom:

– Courthouse – where is it? Note: It is not unheard of that a witness will go to the wrong courthouse or courtroom. Tell your witness not only where the courthouse is but also where the courtroom is located.

– Courtroom Layout. Notes: Much of your witness preparation is designed to familiarize the witness with everything. Most people have a fear of the unknown, and this preparation can alleviate some of that fear. Either show the witness a diagram of the courtroom or take the witness to the courtroom. If you have a child witness, definitely take the child to the courtroom, have the child sit in the witness chair and otherwise learn about the courtroom. Tell the witness who the courtroom players are and where they will be positioned in the courtroom, such as where the clerk, bailiff and court reporter are situated (except for the defendant in a criminal case which could result in a mistrial).

– Don’ts: Notes: Tell the witness not to discuss case in or around the courthouse. because jurors may be on the street around the courthouse or in the halls or on the elevator. Instruct the witness to not enter the courtroom until summoned because witnesses are excluded. This does not apply to the client(s) and to the detective in a criminal case.

 Preparation on the witness’s role and substance:

– Witness’s Role. Notes: Tell your witness to tell the truth. If it hurts, tell the truth. Tell your witness that the only instruction that you have given them regarding what to say is—tell the truth. Ask the witness, “What damaging information is out there?” You need to know because only if you know what it is, can you deal with it.

– Review Prior Witness Statements. Notes: Have the witness review all prior witness statements that the witness has given. Tell the witness before the witness goes over the statement that the witness should not feel wed to what is in the statement. If there is something erroneous, the witness should let you know.

– Cover the Witness’s Story. Notes: Go over the witness’s story in detail and probe for any weaknesses. If there is a weakness, have the witness explain. Witnesses are commonly not good at estimating things like time and distance. Go over this. For example, if the witness says that the two individuals were five feet apart, have the witness show you how far they were apart using objects in the room.

– Practice Direct Examination. Notes: Walk through it. Practice with exhibits and demonstrations

– Practice Cross-Examination. Notes: Explain to the witness that you are going to step into opposing counsel’s shoes and conduct a cross-examination (you may have another colleague do it). Ask tough questions that you expect from the other side. Tell your witness not to worry about cross-examination because the witness is telling the truth.

 Preparing the Witness on How to Testify:

– MRPC 3.4(b) prohibits coaching to testify falsify. Notes: However, you can help the witness be a good communicator. Help the witness be Confident, Clear and Credible. 

– 1.  Have a Good Appearance. Notes: Tell the witness to dress appropriately for court. When sitting in the witness chair, the witness should have good posture—sit up straight.  Speak clearly, and here you can explain the role of the court reporter and the need to speak clearly and not to rapidly. The witness should avoid distracting habits, such as chewing gum or fiddling with a pen.

– 2.  Courtroom Rules. Notes: Tell the witness that if there is an objection, stop talking and listen for directions regarding what is to be done next. Tell the witness that if they can’t remember something, say so. And, explain how you may seek to refresh recollection if the witness can’t recall and the procedure for refreshing recollection.

– 3.  Communication on Direct. Notes: Tell your witness that only the jury counts, and that the witness should talk to them. If court procedures permit, explain that you will stand at the end of the jury box so that the witness will be looking down the jury box towards you. Tell the witness that this courtroom positioning is intended to remind the witness both to speak up so the furthest away jurors can hear and to look the jurors in the eyes and talk to them as though they were having coffee together. Tell the witness that the jurors have no axe to grind with the witness and they are just trying to learn the truth, which the witness will deliver.

– 4.  Communication on Cross. Notes: Discuss keeping composure on cross. You can explain that the witness should never get cute or argue with the questioner. To assist the witness with that endeavor, you can explain that while the witness will not be able to address the jury after testifying, counsel may and in doing so, counsel can comment on the witness’s lack of composure and how the witness’s demeanor showed the witness was not credible. Explain that contrary to direct examination when the witness should look at the jurors, during cross, the witness should look directly at counsel. Instruct the witness listen carefully to the question that is asked and answer it directly. Don’t volunteer information. 

How to Cross-Examine the Evasive Witness

 

In Chapter 10 of the Cross-Examination Handbook, we explore the different methods witnesses use to evade the question and how to control the witness. Recently, the inimitable Elliot Wilcox discussed this topic in a blog piece entitled, “How to Detect 'Non Answers' During Cross-Examination” Here’s what Elliot Wilcox has to say on the subject:

Prof. John Henry Wigmore argued that "Cross examination is the greatest legal engine ever invented for the discovery of truth."  But that's only true if the cross-examination is conducted by a skilled examiner.  Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it.  In the hands of a master craftsman, cross-examination can achieve remarkable results.  In the hands of a novice, it can often cause more harm than good.

To become a quality cross-examiner, you must master the ability to critically listen to  witness's answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you'll need to recognize is the "non-answer."  Expert witnesses and well-prepped witnesses are the best masters of the "non-answer."  At their finest, their responses don't even appear to be evasive.  They'll make it sound like they've answered your question, but in fact, they're completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear. 

If you've ever watched a political interview, you've probably seen "non-answers" in action.  The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:

Q: Are you prepared tonight to say that you've never had an extramarital affair?


A: I'm not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I'm not prepared to say that about anybody...  I have acknowledged causing pain in my marriage...

Some of your witnesses have mastered the art of giving non-responsive answers.  It's your obligation as a cross-examiner to ask follow-up questions and extract your desired answer.  Here are some examples of "non-answers" you should listen for:

Non-Answer #1: Completely Avoiding the Issue

Q: Does this skirt make me look fat?


A: I love you.  (Or you can try Dave Barry's response: Sticking a fork in one or both eyes to avoid answering... it's much less painful!)

Non-Answer #2: Describing Expected Procedures

Q: Did you request a CAT-scan?


A: It's normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?

A: Protocol demands that the chief executive be immediately apprised of matters like this.

Non-Answer #3: Saying What You Will Do or Hope to Do

Q: Do you support higher salaries for judges?

A: I think that's an important issue that we should address.

Q: How soon will you have the weaponized virus contained?

A: We're doing everything we can.

Non-Answer #4: Answering a Question with a Question

Q: Did you lock the store before you left that evening?

A: Why wouldn't I?

Non-Answer #5: Telling What They'd Normally Do in the Situation

Q: Did you check for tire wear patterns?


A: Normally, I would...

Q: No, what did you do?

Q: Did you call for backup before approaching the car?


A: Usually, in these situations...

Q: What specifically did you do in this situation?

Non-Answer #6: Describing What Others Did

Q: Did you find any drugs in the car?


A: We found several packages of cocaine in the center console.

Q: No, what did you find?

Q: Who located the firearm?

A: Our SWAT team found the firearm in the back bedroom.

Non-Answer #7: Guessing or Supposing

Q: Did you read the warning label?

A: I'm pretty sure I would have.

Non-Answer #8: The Speech or the Argument

Q: I'll ask for the fourth time. You ordered --

A: You want answers?

Q: I think I'm entitled to them.

A: You want answers?

Q: I want the truth!

A: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall.  We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!

Non-Answer #9: Half-Truths or Half-Answers

Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?

A: I spoke with Moff Tarkin on numerous occasions.

Q: Did you order the Code Red?

A: I did the job you sent me to do.

To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately.  Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question.  Once you recognize what they're trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.

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.

MAGNIFICENT MOVIE CROSS-EXAMINATIONS

Attendees at Washington Association of Prosecuting Attorneys Summer Training

Just returned from Lake Chelan, Washington where the Washington Prosecuting Attorneys Association conducted its Summer Training. My subject once again was “Great Cross-Examinations and Techniques” and the lessons are drawn from great cross-examinations in history and in the movies. As usual it was well received because of the subject matter. Also, we play trivial pursuits and I give away Cross-Examination Handbook as a prize, among others.

As part of the course materials, I provide the attendees (shown above with the great David McEachran the Watcom County Prosecutor standing – he’s in his last year and heading towards retirement) with a list of 4-Star Movie Favorites, many of which contain classic cross-examinations. Here is the list:

ADVOCACY GOES TO THE MOVIES

4-Star Movie Favorites

Ronald H. Clark

A Civil Action (Paramount, 1998, Directed by Steven Zaillian)  Based on Jonathan Harr’s book A Civil Action.  The case upon which the book and movie are based is Anne Anderson, et al., v. Cryovac, Inc., et al. 96 F.R.D. 431.  The case involves the polluting of the Woburn, Massachusetts water supply with toxins which results in the deaths of the townspeople.  The citizens hire Jan Schlichtmann to sue.  See the movie The Verdict, below, for the connection between Schlichtmann and the author of the book upon which The Verdict was based.  My co-author, Marilyn J. Berger, produced three educational documentary films in the series, Lessons from Woburn. The Untold Stories" with Henry Wigglesworth.  The films have been used in over 100 law schools.    

A Few Good Men (Castle Rock Entertainment, 1992, Directed by Rob Reiner) The movie is based on a play by David Sorkin who got the idea from his sister who was in Navy JAG went to Guantanamo Bay Naval Base to defend  marines who almost killed a fellow Marine in a hazing ordered by a superior officer. 

A Time to Kill (Warner Brothers, 1996, Directed by Joel Schumacher) Based on a John Grisham novel.

Amistad (Dream Works  1997, Directed by Stephen Spielberg) Anthony Hopkins won the Academy Award for playing John Quincy Adams.  Amistad involves trials centering on an 1838 rebellion on a Spanish slave ship, the Amistad.  A  federal trial court decided that the initial transport of the African slaves was illegal and that the Africans were free, not slaves.  Former President John Quincy Adams argued before the United States Supreme Court which affirmed the lower court’s finding.  In 1842, the Africans went home.

Anatomy Of A Murder (Columbia Pictures, 1959, Directed by Otto Preminger, music by Duke Ellington) Movie is based on a best selling novel by Robert Travers.  Travers was the pen name of John Volker, prosecutor, fisherman, and a Michigan Supreme Court judge from 1957-1959.  Jimmy Stewart wins Best Actor Academy Award.  The inspiration for the book was the 1952 Big Bay Michigan Lumberjack Tavern murder trial.  The defendant killed the tavern's proprietor, Mike Chenowith, claiming that Chenowith had raped his wife.

Bananas (MGM, 1971, Directed by Woody Allen) The scene where cross-examines himself is a classic.

Caine Mutiny (Columbia Pictures, 1954)  Best Actor Academy Award to Humphrey Bogart, based on Pulitzer Prize winning novel by Herman Wouk.

Chicago (Miramax, 2003, Directed by Rob Marshall), Academy Award for Best Movie in 2003.   Chicago was a 1927 play, which became a 1927 silent film, a 1942 romantic comedy film Roxie Hart, the 1975 stage musical Chicago, and then the 2002 movie musical.  Chicago concerns two women convicted murderer who are on death row together in Jazz-age Chicago.  The inspirations for the play and then movies were the murder trials of two women, Belva Gaertner and Beulah Annan, both of whom were acquitted at trial.

Erin Brockovich (Universal Films, 2000, Directed by Steven Soderbergh) Erin Brochovich, a legal assistant, goes after Pacific Gas and Electric Company for polluting the water supply.  Julia Roberts wins the Academy Award for Best Actress and the real Erin Brochovich appears in the movie as a waitress.  Literary  license is taken in the film:  Massey’s partner, not Massey, represented Brochovich in the automobile accident case and Brochovich was Miss Pacific Coast, not Miss Wichita.

Freck Point Trial (Aspen  Publications, Directed by Gretchen Ludwig)  This movie is a trial advocacy training film with veteran actors doing everything from jury selection through closing argument.  The movie comes with the book Trial Advocacy: Planning, Analysis and Strategy by Berger, Mitchell and Clark.  For more information visit – www.aspenadvocacybooks.com  

Inherit the Wind (United Artists, 1960, Directed by Stanley Kramer, who also directed Judgment at Nuremberg) The movie is based on the Jerome Lawrence and Robert Edwin Lee 1955 play.  It is inspired by the 1925 trial of John T. Scopes who was convicted of teaching Dawin’s theory of evolution in a Tennessee high school science class (hence called “The Scopes Monkey Trial.”  Scopes was ordered to pay a minimum fine.  The play liberally drew from the transcripts.  Scopes was represented by Clarence Darrow, and William Jennings Bryan prosecuted. 

Judgment at Nuremberg (Roxlom, 1961, Directed by Stanley Kramer who also directed Inherit the Wind).  Maximilian Schell won the Academy Award for Best Actor.  The actual Katzenberger trial was a subplot of this movie.  In a Nazi show trial, Leo Katzenberger, a Jewish businessman and Nuremberg community leader was convicted of having an affair with a young Aryan woman, and sentenced to death. During the Nuremburg trials, the presiding judge at the Katzenberger trial was convicted and sentenced to life imprisonment.

Legally Blonde (MGM, 2001, Directed by Robert Luketik).

Murder on a Sunday Morning (Direct Cinema, 2003, Directed by Jean-Xavier de Lestrade) Academy Award winning documentary, Documentary about a murder in Jacksonville, Florida.

My Cousin Vinny (20th Century Fox, 1992, Directed by Jonathan Lynn).  Marisa Tomei an Oscar for Best Supporting Actress.  The writer, Dale Launer, explains the inspirations for the script as follows on his website:

The next movie was one he wrote and produced - an original screenplay called HIS COUSIN, VINNY. This was one of his very first movie ideas - inspired by the fact that some lawyer in California took 13 attempts to finally pass the bar exam.

He took a trip down south to do story research, starting in New Orleans, where he picked up a car, drove up through Mississippi, over to Alabama and down to the gulf coast. Along the way his car got stuck in the mud - which he worked into the story. He also noticed grits on every menu - which also got worked into the story. He stopped in the town of Butler, knocked on the door of the district attorney and had a chat with the deputy DA who reminded him of actor Lane Smith. This character found its way into the story (and Lane Smith played the part in the movie). Launer noticed they have gigantic cockroaches down there and that was massaged into a scene, but the director took it out for reasons that still mystify Launer. A screech owl too made it into the story. Everyone he met was very friendly and helpful, but when he told them he was making a movie that took place in the south - they'd get very concerned - afraid that Hollywood movies always made them look like bumpkins. That too woven weaved into the story. 

Philadelphia (Clinica Estetico, 1993, Directed by Jonathan Demme). Tom Hanks wins Oscar for Best Actor.  The movie is based on the 1987 Geoffrey Bowers, suit against the law firm Baker & McKenzie for unfair dismissal in an AIDS discrimination case. 

Place in the Sun  (Paramount Pictures, 1951, Directed by George Stevens, who won an Oscar for Best Director) The movie is based on An American Tragedy by Theodore Dreiser.  The book was inspired by the 1906 murder case in which Chester Gillette was convicted of killing Grace Brown, his ex-girl friend who was pregnant and wanted Gillette to marry her.  The murder took place in upstate New York at Big Moose Lake where Gillette took Brown out on a boat, hit over the head with a tennis racket, leaving her to drown.  In 1908, Gillette was electrocuted. 

Rainmaker  (Paramount Pictures, 1997), Directed by Francis Ford Coppola) It’s based on a John Grisham novel.

The Case Against 8 (HBO 2014) Directed by Ben Cotner and Ryan White who won the Directing Award: U.S. Documentary at the Sundance Film Festival for their work on the film. This documentary recounts the legal fight to overturn California’s Proposition 8 which only permitted marriage between a man and a woman. David Boies and Theodore Olson are featured.

The Fugitive (Warner Brothers, 1993, Directed by Andrew Davis), Tommy Lee Jones won the Oscar for playing Deputy United States Marshal Samuel Gerard.  The movie is based on the popular television series by the same name, starring David Jansen.   The series was based upon the Sam Sheppard case.  Sheppard was convicted of killing his wife and sentenced in 1954 to prison.  However, his conviction was overturned by the United States Supreme Court because of the prejudicial pretrial publicity.  F. Lee Bailey represented Sheppard who in 1966 was acquitted at the retrial.

The Pelican Brief (Warner Brothers, 1993, Directed by Alan J. Paluka, who also directed the Presumed Innocent, based on best-selling novel by lawyer Scott Turow). Pelican Brief is based on a Grisham novel.

The Shooting of Big Man (Creative Common Sense, 1979, Directed by Eric F. Saltzman)  Documentary of a assault with intent to kill case from arrest through trial in Seattle, Washington in 1979.

The Staircase (Sundance, 2004, Director - Jean-Xavier de Lestrade), Documentary about a murder in Durham, North Carolina.

The Verdict (20th Century Fox, 1982, Directed by Sidney Lumet who also directed Twelve Angry Men)  The 1980 book on which The Verdict movie was based was written by Barry Reed, a Massachusetts’s lawyer, with screen play by David Mamet.  Barry Reed was a mentor to Jan Schlichtmann, who was the trial lawyer who filed suit against W. R. Grace and Beatrice Co. over the contaminated drinking water deaths in Woburn, Massachusetts.  The case was written about in the book A Civil Action and later made into a movie by the same name.

Twelve Angry Men (United Artists, 1957) Directed by Sidney Lumet who also directed The Verdict).

Witness for the Prosecution (United Artists, 1957) Directed by Billy Wilder and starring among others Marlene Deitrich and Charles Laughten. This is a courtroom drama set in the Old Bailey which was adapted from a play by Agatha Christie. 

Young Mr. Lincoln (20^th Century Fox, 1939, Directed by John Ford).  Although the movie is about Abe’s first case after he began practicing law in 1837, the movie trial is actually based on one of his much later cases from 1857.  In that case, Lincoln’s client Duff Armstrong was charged with murdering James Metzker.  Lincoln, using judicial notice, established that the eye witness Charles Allen’s testimony was false because the witness could not, as he claimed, have seen the shooting at a distance of 150 feet by moon light on that date according an almanac.

JURY SELECTION HANDBOOK: COMPANION TO CROSS-EXAMINATION HANDBOOK

Carolina Academic Press has just published JurySelection Handbook: The Nuts and Bolts of Effective Jury Selection (374 pages) by Ronald Clark and Thomas O’Toole. Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection is a companion to Cross-Examination Handbook because jury selection and cross-examination are the most challenging of trial skills.


The book offers two perspectives on the principles and practices for conducting jury selection: that of a trial advocacy professor, who has extensive trial experience as well as trial advocacy training, and that of a jury consultant, who has picked over 200 juries across the country in state and federal courts on a wide variety of civil and criminal matters with exposure up into the billions.

The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions.

The book provides role-play jury selection assignments for both a civil and a criminal case that can be utilized in law school trial advocacy and clinic courses and in lawyer CLE or in-house law firm professional development training sessions.

Robust online appendices provide examples of jury questionnaires, motions and responses to motions relating to jury selection, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.

Jury Selection Handbook, like the Cross-Examination book dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for lawyers who are acquiring their jury selection skills, veteran trial lawyers who want to refresh and expand their approaches and law students. In essence, this book provides a comprehensive view of the jury selection process that can help all attorneys get a better perspective on the strategic choices available to them at every step of the process.