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.

IMPEACHMENT CROSS-EXAMINATION - INCONSISTENCY

Inconsistency is probably the most frequently employed method of impeachment during cross-examination, especially in cases where depositions have been taken.  Sometimes the inconsistency is not an internal conflict between what the witness now says and what the witness once said. Sometimes it is a conflict between what the witness says and another witness or some irrefutable fact. An example of this type of impeachment was seen in the trial of George Zimmerman. 

In the early days of the investigation, Zimmerman had gone on a nationally televised talk show and asserted that he had never heard of Florida’s “Stand Your Ground” law (SYG). Given the pervasive coverage of the public debate surrounding the passage of SYG, this assertion was inherently implausible. The prosecution was not content to simply rely on the inherently implausibility, but went on to call a professor who had taught a criminal justice class which Zimmerman had taken in college. The professor thoroughly contradicted Zimmerman by revealing that he had been taught about SYG in the class. This impeachment of Zimmerman tends to validate what we have said before  - that impeaching a witness oftendoes very little toward the primary objective of persuading the finder-of-fact to accept your case theory.

THE THREE I’S OF IMPEACHMENT CROSS-EXAMINATION

It may be somewhat counterintuitive, but the impeachment of a witness is not the primary goal of cross-examination. The primary goal of cross-examination is to persuade the jury to endorse your case theory. Impeaching opposing witnesses contributes to proving your case theory only indirectly. It tends to encourage the finder-of-fact to reject the opposing side’s theory. It is especially true in the realm of criminal prosecution that this rejection of the opposition theory may or may not advance your case theory. If you are the prosecutor and the jury disbelieves your theory, it makes little difference whether they believe the defense theory. Thus, impeachment helps to build your case theory only in a negative way, by eliminating competition from the opposition’s theory.
Impeachment comes in three basic flavors:
1. illogic,
2. incrimination, and
3. inconsistency.

1. Illogic

If you can demonstrate that the witness is saying something nonsensical, you have gone a long way toward impeaching the witness. In a horrific domestic violence case tried a few years ago, a man claimed that his wife had received her injuries by jumping from a moving car. He explained that she had been high on drugs and acting out in bizarre fashion for the past two weeks. The problem with his story, which was pointed out quite well on cross examination, was that he and his wife had just the previous night arrived in Florida on a commercial flight from Nevada. One fertile area of cross examination proved to be a line of questions on how his severely drug impaired wife got through the TSA screening to get on the plane. The defendant also had some difficulty explaining why, after his wife jumped from the moving car, he took her home, hogtied her, and stuffed her in a closet rather than taking her to the emergency room.

2. Incrimination

Incrimination, of course, means conviction of crime, but we use it here in a broader sense to mean any evidence of bad character. Indeed, in many jurisdictions across the nation impeachment by prior conviction has been so sanitized that it can have little effect on the witness’s credibility. In Florida, for example, the only questions that can be asked are:
Q: Have you ever been convicted of [a felony] [a crime involving dishonesty or false statement]?
Q: How many times.
It is essential, however, that the witness be prepared to answer the questions. Unless your witness understands the process of impeachment by prior conviction, you just might be embarrassed to hear a colloquy something like this question and answer from a long-ago burglary case:
Q: Have you ever been convicted of a crime?
A: I did time for manslaughter once, but I didn’t kill him. I just stabbed him. He died in the hospital.

3. Inconsistency

Inconsistency is probably the most frequently employed method of impeachment, especially in cases where depositions have been taken. Sometimes the inconsistency is not an internal conflict between what the witness now says and what the witness once said. Sometimes it is a conflict between what the witness says and another witness or some irrefutable fact. A recent example of this type of impeachment was seen in the trial of George Zimmerman. In the early days of the investigation, Zimmerman had gone on a nationally televised talk show and asserted that he had never heard of Florida’s “Stand Your Ground” law (SYG). Given the pervasive coverage of the public debate surrounding the passage of SYG, this assertion was inherently implausible. The prosecution was not content to simply rely on the inherently implausibility, but went on to call a professor who had taught a criminal justice class which Zimmerman had taken in college. The professor thoroughly contradicted Zimmerman by revealing that he had been taught about SYG in the class. This impeachment of Zimmerman tends to validate what we said at the beginning of this post. Impeaching a witness often does very little toward the primary objective of persuading the finder-of-fact to accept your case theory.