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.

THE CROSS-EXAMINER’S DEMEANOR

We have previously discussed how to behave on cross and that discussion of the cross-examiner’s deportment is worth revisiting. The do’s and don’ts of how to behave during cross-examination are as follows:

Don’t Show the Damage

You asked the “Why” question on cross-examination and paid the consequences. You opened the door for the expert witness to expound on the other side’s case theory. You wish you could go hide under counsel table. But, that’s not an option.

Don’t let the jury see you bleed. Remain calm, and don’t let the damage register on your face. The jurors are constantly watching you. If you reveal how much the witness’s answer hurt, it will just compound the harm. Even worse, your crushed reaction may turn the jury against you and your client. It’s to your advantage to maintain a poker face.

Don’t Be Cross and Don’t Get Ahead of the Jury

Axiom for cross-examination: You don’t have to be cross to cross-examine. James W. McElhaney in McElhaney’sTrial Notebook put it this way when discussing quarrelling with a witness on cross: “. . . Once again, the hallmark of poor cross-examination is arguing over unessential details.

“Part of the problem of the needless quarrel is the demeanor of the cross-examiner. Usually it is not a good idea to ask questions in an accusatorial manner. The jury has a lot of sympathy with the person in the witness box. The advantage of the lawyer in being able to ask questions and insist on answers to them is obvious to the jury. Unnecessary hostility is likely to backfire.

“Yet there may be a time for a raised eyebrow, a series of rapid fire questions or even righteous indignation. To some extent the jury gets its cue from counsel how to respond to the testimony, and you should not neglect this role. The problem is to strike the proper balance without putting on a transparent act. One good way to approach this balance is to keep from being hostile with a witness even one you know is lying, unless the jury can see you have a good reason for it.”

Another way to express this principle is: Never get ahead of the jury. In other words, don’t go after a witness harshly unless you are convinced the jury thinks the witness deserves it.

Don’t Be Nasty

In On Trial: Lessons from a Lifetime in theCourtroom, Henry G. Miller states: “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.”

Do Be a Seeker of Truth and Show It

The proper demeanor for the cross-examiner is to be professional and a seeker of truth. As a seeker of truth, you may ask tough questions. While jurors do sympathize with witnesses who are being subjected to cross, witnesses differ and so must the cross-examiner’s demeanor. When cross-examining the vulnerable witness, such as a child, counsel’s manner normally should be solicitous. On the other hand, when cross-examining an expert witness, particularly one who is gives evasive answers, counsel’s demeanor may be more assertive. Again, never get out ahead of the jury.

Do Be Confident

Henry G. Miller in On Trial offers another sound piece of advice: “Act Like You’re Getting Somewhere. Great cross-examiners always act as if they’re getting somewhere. They start smartly. They finish smartly. They exude confidence. They seem to find guilty inferences in every answer, no matter how innocent.”