Monday, January 23, 2023

NEW BOOK: TRIAL ADVOCACY GOES TO THE MOVIES: Go to the Movies for Lessons in Trial Strategies, Techniques and Skills

 

What do My Cousin Vinny and Atticus Finch have in common? A lot more than you might think.  While Atticus Finch’s closing argument in To Kill a Mockingbird continues to inspire viewers to attend law school, the cross-examinations in My Cousin Vinny—while hilariously funny—offers equally compelling examples of excellent lawyering. With the aid of movies, this book Trial Advocacy Goes to the Movies explores advocacy from pretrial preparation through closing argument.

Why go to the movies to learn trial advocacy strategies, techniques, and skills? First, trial work is theater; movies show trial advocates how to effectively deliver a message to an audience. Second, movies illustrate successful advocacy principles and techniques. Third, movies are a visual medium, showing how to impart to a jury the trial lawyer’s message with visuals. Fourth, movie clips can be used to illustrate ethical and legal boundaries that trial lawyers should not cross. Fifth, some movies are based on actual cases and show how to be successful in trial with a real-life examples. Sixth and lastly, movies are entertaining and that helps the viewer learn winning trial techniques.  

This volume, like a play and most movies, has three acts. Act 1 focuses on the screen play and how to incorporate the elements of a five-star screenplay into your trial story. Act 2 is devoted to casting, rehearsal—how to prepare the actors in the movie—the witnesses. Act 3 deals with the performances—how to perform like a star at each stage of the trial. 

Your role changes as you move from Act to Act. For Act 1—Screen Writer, you are the screen writer and cinematographer. For Act 2—Director, you are the director who casts the parts, rehearses the actors and so on, and you work for the movie studio. And, for Act 3—Actor, you are the principal actor who performs during each phase of the trial. A good portion of this short book is devoted to cross-examinations in the movies because they are usually the most dramatic scenes.

Because this is an e-book, you can watch movie clips of trial advocacy (yes, My Cousin Vinny is included) – each clip is just one click away.

This book is an outgrowth of a presentation titled by the same name—Advocacy Goes to the Movies—that I have had the pleasure of delivering at continuing legal education seminars across the country. Yes, the lawyers got CLE credit for attending. The presentation usually lasted a half-day.  Advocacy Goes to the Movies was always a lecture that I enjoyed giving and was received with smiles and engagement by the audience. Hope you enjoy it too.

Click here to purchase Trial Advocacy Goes to the Movies.









Wednesday, January 18, 2023

Controlling the Witness during Cross-Examination




This is another in the series of articles here focusing on the methodology that is key to an effective cross-examination. The methodology has four components: 

1st – CONTENT – how to select the content of your cross
2nd – CONSTRUCTIONS – how to construct the cross – form of the questions. Transitions. Sequencing.
3rd – CHARACTER – how to behave during cross so project fairness to the jury
4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

Here we examine the fourth—CONTROL of the witness.

The late great Irving Younger gave us the 10 COMMANDMENTS OF CROSS

1. Be brief
2. Short questions
3. Leading
4. Know answer
5. Listen answer
6. No quarrelling
7. No explanation
8. Don’t repeat direct
9. Avoid too many questions
10. Persuade during closing not cross  

Follow these or suffer the consequences. Follow these commandments and you control the witness. Watch Professor Younger lecture on the Ten Commandments.













 

Tuesday, January 10, 2023

The Character of the Cross-Examiner

 


This is another in the series of articles focusing on the methodology that is key to an effective cross-examination. The methodology has four components: 

1st – CONTENT – how to select the content of your cross

2nd – CONSTRUCTION – how to construct the cross – form of the questions. Transitions. Sequencing.

3rd – CHARACTER – how to behave during cross so project fairness to the jury

4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

We have in previous post examined how to select the CONTENT of cross-examination and how to CONSTRUCT the cross-examination. This post focuses on a critical part of a successful cross—the CHARACTER of the cross-examiner.

Not enough can be said about this next component of cross—the CHARACTER OF THE CROSS-EXAMINER. Character means the “ethical and mental features that distinguish and mark a person”

One lawyer who could serve as a ROLE MODEL of all cross-examiners is Abe Lincoln. In his 23 years as a lawyer, he tried more cases than any other lawyer in Illinois and had more cases before the highest court than any other. It was written about him that “as a cross-examiner he had no equal at the bar and we betide the unlucky individual who suppressed the truth or colored it.”

Lincoln’s motto was: “Better to make a life than a living.”

He was known on more than one occasion to cease to cooperate with co-counsel, saying, “If I say a word (to the jury) they will see from my face that the man is guilty.”

During your cross, do you project – Integrity? Fairness? Sincerity?

The kind of character Lincoln understood was right and expected by the jury. In The Art of Cross-Examination Francis Wellman spelled it out for us in 1903:

“Counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who is courteous to those who testify against him. . . who seems to know what he is about and sits down when he has accomplished it – he it is who creates an atmosphere in favor of the side he represents, a powerful though subconscious influence with the jury in arriving at their verdict 

“On the other hand, the lawyer who wearies the court and jury with endless and pointless cross-examinations; who is constantly losing his temper and showing his teeth to the witnesses. . . prejudices a jury against himself and the client he represents. . .”

A fair-minded seeker of truth doesn’t attack a truthful witness or one perceived as truthful.

Jurors are usually sympathetic with witnesses and skeptical of attorneys. Therefore, don’t get ahead of the jury. The jury must perceive the witness as untruthful or mistaken or evasive before they are willing to accept an aggressive cross. Sadly, too many trial lawyers approach every defense witness as though they are committing perjury

Besides, you don’t need to be cross to cross-examine.




Wednesday, December 28, 2022

3 Types of Cross-Examination Questions

 

John Travolta - Civil Action

There are three types of questions that may be asked on cross-examination. The first one—the INTERROGATORY question shouldn’t ever be asked unless you have had decades of experience as a trial lawyer and know exactly what you are doing. Particularly, never ask a Why question. Witness this scene from A Civil Action.



The second type of question that may be asked on cross, is the CLOSE-ENDED type and this is exactly what you want to use on cross because it is your turn to testify, not the witness’s. Here’s an example borrowed from My Cousin Vinny: 

When the two defendants went into store, you were cooking
Grits for breakfast 
How cook your grits 
Regular
Not instant grits
Took you twenty minutes to cook grits

The third and final type of cross-examination question is the ACCUSATORY QUESTION. This is used when you have caught the witness in a trap and want to drive home the point. Also, it’s an example of asking a Why question when you know you know the truthful answer or can prove the truth if the witness lies. Watch how it worked in A Few Good Men:


 


Tuesday, December 20, 2022

Cross-Examining the Unbelievable Witness


When the CONTENT of your cross-examination is the IMPEACHMENT of the witness, the techniques you use to accomplish the impeachment are critical. 

Prior posts here have been devoted to great cross-examination demolitions—a veritable wrecking crew of impeachments. This is a list of the impeachment wrecking crew, and we have covered them in prior posts:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

Here we turn to how through cross-examination to show that the witness is not to be believed. Evidence rules come into play.

First, Evidence Rule 609 governs impeachment with a prior conviction. Rule 609 states: 

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Above is an actual chart showing the government’s witnesses’ prior convictions. Pistol whipping a priest is pretty serious.

Second, cross-examination can impeach a witness by showing the witness’s prior untruthfulness. Here Evidence Rule 608 comes into play. Rule 608 provides:

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Third, if a character witness is called to testify, cross-examination to show the witness’s untruthfulness may be permitted under the evidence rules. Evidence Rule 608 (above) indicates when that impeachment may be pursued. Rule 404(a) also provides the grounds for such impeachment, as follows: 

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; . . .







Wednesday, December 14, 2022

How to Impeach with a Prior Inconsistent Statement

 


In prior posts, we have spelled out how to demolish a witness by showing that the witness’s Report is Faulty (the report is Improbable because it is absurd, lacks common sense or can be contradicted. Here we concentrate on impeaching a witness with a prior inconsistent statement. 

Evidence rule Rule 613—Prior Statements of a Witnesses governs the methodology for cross-examining a witness regarding a prior inconsistent statement and the use of extrinsic evidence to contradict the witness, as follows:
 
(a) Examining Witness Concerning Prior Statement. 
In the examination of a witness concerning a prior statement made by the witness, whether written or not, the court may require that the statement be shown or its contents disclosed to the witness at that time, and on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. 
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). 

There are NINE STEPS TO EFFECTIVE IMPEACHMENT WITH A PRIOR INCONSISTENT STATEMENT

   1. Avoid nitpicking – nothing worse than a nitpicking cross  
  2. Recognize the inconsistency – listen carefully to the witness
  3. Retrieve the prior statement – be prepared
  4. Repeat the testimony – pound home the current testimony
  5. Reinforce the truthful statement – show the prior statement was more likely to be truthful (e.g., made closer in time to the event and under circumstance making it likely the witness was truthful
  6. Reference the prior statement
  7. Resonate with the jury – pause, then slowly read the statement 
  8. Read and/or display the statement
  9. Refute the witness’ denial – use extrinsic evidence.

See Chapter 7 in Cross-Examination Handbook for a more extensive discussion of how to impeach with a prior inconsistent statement.

Now, watch this clip from the great Agatha Christie story Witness for the Prosecution to see how to impeach with a prior inconsistent statement – particularly how to Resonate with the Jury.



Hope you enjoyed that.




























Wednesday, December 7, 2022

Cross-Examination: How to Impeach by Contradiction

 












              OJ Simpson and his legal team

We are now examining the second impeachment wrecking crew—The Faulty Report. There are three techniques you can employ to show the witness’s report is improbable:

1. Reduction to the Absurd Technique

2. Common Sense Technique

3. Contradictory Conduct Technique

In the prior posts the first two techniques were discussed and illustrated. Here we cover the Contradictory Conduct Technique that can be applied to show that the witness’s testimony is improbable. 

The OJ Simpson trial provides a good example of how to employ this contradiction technique. A portion of F. Lee Bailey’s cross-examination of the lead detective Mark Furhman went as follows:

Bailey: Q:  Do you use the word “nigger” in describing people?

Ms. Clark:  Same objection.

The Court:  Presently?

Bailey:  Yes.

The Court:  Overruled.

Furhman: A:  No, Sir.

Bailey:  Q:  Have you used that word in the past ten years?

A:  Not that I recall.  No.

Q:  You mean if you called someone a nigger you have forgotten it?

A:  I’m not sure I can answer the question the way you phrased it, Sir.

Q: You have difficulty understanding the question?

A:  Yes.

Q:  I will rephrase it.  I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a nigger.  Is it possible that you have forgotten that act on your part?

A:  No, it is not possible. 

Q:  Are you therefore saying that you have not used that word in the past ten years, detective Fuhrman?

A:  Yes, that is what I’m saying.

Q:  And you say under oath that you have not addressed any black person as a nigger or spoken about black people as niggers in the past ten years, detective Furhman?

A:  That’s what I’m saying, Sir.

Mark Furhman

The defense called witnesses to say he used the word, and the defense produced an audio tape in which he said the word. Furhman was later convicted of perjury and sentenced to three years probation – now lives in Idaho.

A limitation on how you may contradict a witness is that you may not pit one witness against another—it’s called “pitting”.  Here is a further discussion of pitting.