Tuesday, September 26, 2023

HOW TO PREPARE A WITNESS 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. 






Monday, September 25, 2023

TRIAL WORK AXIOM: EXAMINE EXHIBITS BEFORE THEY GO TO THE JURY OR OUCH!

 


An irrefutable principle is that a trial lawyer should carefully examine every exhibit that may go to the jury room. This bears repeating because of the consequences. Adhere to this rule or live to regret it. 

One cautionary tale I use to drive home this point in my advocacy classes involves the trial of a criminal sexual conduct, first degree burglary and kidnapping case involving a 72-year-old woman victim. An Orangeburg, South Carolina trial judge granted a mistrial ruling that the jury was prejudiced by evidence not submitted at trial. Jurors found a confession in the back pocket of the pants (defendant) Bradley was wearing when police arrested him. The pants had been admitted into evidence, but the document had not. 








Wednesday, September 20, 2023

New Lawyer Jokes Book in Progress

 


I'm currently working on a new book on Lawyer Humor and this is a piece of it.

Law schools should focus on producing professional communicators—lawyers—who are effective writers. However, Bryan A. Garner in his column for the ABA Journal titled, “Why Lawyers Can’t Write” with the subtitle: “Science has something to do with it, and law schools are partly to blame.” stated:

While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments. (ABA Journal, March 2013, p. 24)

Garner was echoing the theme of Jim McElhaney, advocacy instructor and ABA Journal contributor for 25 years, who wrote this in a September 2012 ABA Journal article: 

Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity.

  So we lard our speech and writing with words and phrases of awkward obscurity and rarely have anything to do with legal precision but that unmistakably say, ‘This was written – or said – by a lawyer.’

Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to be effective communicators. 

One day in contract law class, the professor asked one of his better students, "Now if you were to give someone an orange, how would you go about it?"

The student replied, "I’d write a contract that says, ‘Here's an orange.’"

The professor was livid. "No! No! Think like a lawyer!"

The student then responded, "Okay, I'd write, ‘I hereby give and convey to you all and singular, my estate and interests, rights, claim, title, claim and advantages of and in, said orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages with full power to bite, cut, freeze and otherwise eat, the same, or give the same away with and without the pulp, juice, rind and seeds, anything herein before or hereinafter or in any deed, or deeds, instruments of whatever nature or kind whatsoever to the contrary in anywise notwithstanding...’"

Here is another example—in a pretrial ruling on a motion for a more definite statement in a complaint, the Honorable Ronald B. Leighton, United States District Judge, Western District of Washington at Tacoma, Washington provided gems of judicial humor when discussing a pleading. In Presidio Group, LLC, vs. GMAC Mortgage, LLC. Judge Leighton's order granting the motion began with William Shakespeare, Hamlet, Act 2, Scene 2, Line 90: “Brevity is the soul of wit.”

The good Judge then went on to point out that “(b)revity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” He then described portions of the 465-page Complaint:

Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages – including a 37-page pit-stop to quote e-mails. (Compl. 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages.

Then, in granting the motion, Judge Leighton added a bit of his own poetry:

Plaintiff has a great deal to say

But it seems he skipped Rule 8(a),

His Complaint is too long,

Which renders it wrong,

Please re-write and re-file today.

______________________________

To assist lawyers, Sally Bulford, a Utah prosecutor, provided these witty writing pointers for lawyers under the title “How to Write Good”:

1. Avoid alliteration. Always.

2. Prepositions are not words to end sentences with.

3. Avoid cliches like the plague. (They're old hat.)

4. Employ the vernacular.

5. Eschew ampersands & abbreviations, etc.

6. Parenthetical remarks (however relevant) are unnecessary.

7. It is wrong to ever split an infinitive.

8. Contractions aren't necessary.

9. Foreign words and phrases are not apropos.

10. One should never generalize.

11. Eliminate quotations. As Ralph Waldo Emerson said, "I hate quotations. Tell me what you know."

12. Comparisons are as bad as clich├ęs.

13. Don't be redundant; don't use more words than necessary; it's highly superfluous.

14. Be more or less specific.

15. Understatement is always best.

16. One-word sentences? Eliminate.

17. Analogies in writing are like feathers on a snake.

18. The passive voice is to be avoided.

19. Go around the barn at high noon to avoid colloquialisms.

20. Even if a mixed metaphor sings, it should be derailed.

21. Who needs rhetorical questions?

22. Exaggeration is a billion times worse than understatement.

Sunday, September 10, 2023

Tuesday, September 5, 2023

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.



Tuesday, August 29, 2023

How Not to Cross-Examine a Witness: Courtroom Humor

 


Don’t shoot yourself in the foot. Leading questions on cross. Leading questions. Leading questions. Open-ended cross-examination questions can have repercussions.

The following is a courtroom cross-examination exchange between a defense attorney and a plaintiff farmer with a bodily injury claim. 

Q: "At the scene of the accident, did you tell the constable you had never felt better in your life?"

A: "That's right."

Q: "Well, then, how is it that you are now claiming you were seriously injured when my client's auto hit your wagon?"

A: "When the constable arrived, he went over to my horse, who had a broken leg, and shot him. Then he went over to Rover, my dog, who was all banged up, and shot him. When he asked me how I felt, I just thought under the circumstances, it was a wise choice of words to say I've never felt better in my life."

Source: Houston, Texas insurance agent.