Brand New Editions of Pretrial and Trial Advocacy Books

 

Nothing makes us happier than the release of a newly published edition of an advocacy book, and Aspen Publishing has just launched the 5th edition of Trial Advocacy.

The three of us--Marilyn Berger, John Mitchell and I--have been at this for some time, and when we set out our goal for both Pretrial and Trial Advocacy books was to impart real-world approaches to litigation. We also wanted to provide not only a textbook but also, thanks to Marilyn’s expertise in filmmaking, demonstration videos (such as a trial demonstration video and videos showing how to take and defend depositions) and practical experiences through role-play assignments (such as performing trial activities from jury selection through closing argument).

Additional materials for performance are an inclusive aspect of the books: realistic case files containing documents, witness statements, photographs, and so forth. Teacher materials for both books include sample syllabuses and an extensive Teacher Manual for both Pretrial and Trial courses.

It’s great to see how the books have progressed, keeping pace with the best in litigation advocacy. Together we have worked to make sure the new editions are right up to date, for examples covering changes in response to COVID-19, electronically stored information (ESI), trial technology, and persuasive litigation visuals.  Most exciting is that new editions are now available on the popular Aspen Publishing CasebookConnect online platform.

Each book and companion materials can be used for a stand-alone Trial Advocacy or Pretrial Advocacy course, or they may be paired together and taught over, for instance, two semesters because they have a common nomenclature as well as the same analytical framework and civil and criminal casefiles.

If you are teaching trial advocacy or want a complete resource about trial advocacy, this book may be for you. The best way to decide on a textbook is to see for yourself. If you teach trial advocacy, to get obtain a complimentary review copy of Trial Advocacy click here  for a complimentary review copy of Pretrial Advocacy, click here. 

We truly hope that you like the new editions and will adopt one or both. If you have any questions, contact me at clarkrh@comcast.net.

More Advocacy Tools Offered

 

A most exciting addition to the new editions of Trial Advocacy 5th Ed. and Pretrial Advocacy 6th Ed. is that they are now available with the popular Aspen Publishing CasebookConnect online platform. CasebookConnect provides many supplemental materials. Let’s take a look at some of them in the Trial Advocacy CasebookConnect platform. 

First on the CasebookConnect Platform is the Professor or instructor materials that are only accessible to the instructor and will assist the instructor in teaching, and these materials include a Teacher’s Manual and Actor’s Guide that contains role-play instructions that the teacher can give to students who will play a roles in a performance  assignments, such as instructions to a student who is assigned to play the role of a witness during a cross-examination exercise. 

Following the Professor Materials is a Welcome Tab with resources welcoming students to CasebookConnect and its functions. Next is Cases and Assignments Tab where the assignments for student performances are located. By clicking on the Case Files Tab, student can access the full case files for both the criminal and civil cases that are utilized for the performance assignments.

Unique to the Pretrial and Trial Advocacy books are movies that show how to perform everything from taking and defending a deposition to closing argument. Under the Movies Tab in the Trial Advocacy book’s CasebookConnect, students can access the following: an animation of an aviation crash; visuals in a settlement documentary; a video on implicit bias; and both a full movie of a demonstration trial as well as movie clips demonstrating trial advocacy skills.

Under the next Additional Materials Tab are a variety of supplemental materials, such as juror questionnaires, trial brief, motions and more.

Remember the Jury: Cross-Examining Trump’s Claimed Rape Victim Jean Carroll

 

Donald Trump's lawyer, Joseph Tacopino was tasked with the cross-examination of 79-year old Jean Carroll who claims that Donald Trump raped her in a Manhattan department store in 1996. Tacopino attacked her credibility contending that she came forward in 2019 because she did not like his politics and wanted to sell copies of her book. That’s fair game.

A cross-examiner needs to beware of the different expectations of each of the audiences the cross-examiner is playing to during the cross-examination. The cross-examiner needs to be constantly aware of the jurors’ role in applying the law to the facts as they find and reach a verdict. The jurors’ job is to determine the truth, and the cross-examiner's demeanor and conduct should be designed to help the jurors meet their responsibilities.

While it may be satisfying to the cross-examiner Tacopino to challenge Carroll, the real test is what the jury thinks. Jurors may perceive his conduct in a negative light—as an abuse of her—particularly if they're not convinced that she deserved it. If she were patently lying, the situation shifts in favor of a rigorous cross-examination.

In the aftermath of his cross questioning her about why she didn’t act the way some might think a rape victim should—scream, call the police and so on, the jury will hear from two other women who say Trump raped them, Trump’s own words about how he groped women, and expert testimony that women don’t react as Tacopino suggests. And, this is not a he-said-she-said trial because it’s likely Trump won’t testify. The prosecutor’s closing probably will shred any argument by Tacopino to the effect that she wasn’t sexually assaulted.

Defense counsel Tacopino’s approach is a lesson is what not to do—he forgot his audience. For instance, Tacopino pressed Carroll about why she did not scream for seek help when Trump attacked her in the department store. Carroll's reaction was to respond to the suggestion that rape victims are supposed to act in a certain way was incorrect by saying that such thinking deters women from coming forward. She said, “I'm telling you, he raped me, whether I screamed or not.” News reports say that her voice rose and broke at this point. It was a step too far on cross.

CROSS-EXAMINATION: Poor Preparation Produces Picayune Points

Go Big: As we explain in Cross-Examination Handbook: Persuasion, Strategies, and Techniques, the primary purpose of cross-examination is to convince the jury to adopt your case theory and reject your opponents. This is the big picture. To do this, seek concessions that either build upon or protect your  own case theory or damage the other side’s. A secondary purpose is to impeach the witness’s credibility as unworthy of belief, thereby damaging your opponent’s case. Cross can be fashioned to produce one or both results. When a witness refuses to concede a fact that must be given because the evidence or common sense proves it to be the truth, the witness is impeached.  Of course, if you can gain such significant concessions from the witness that you have turned that witness to your own, remember the big picture—you can forgo impeachment. 

In Cross-Examination Handbook, we provide multiple illustrations of cross-examinations that revealed the big picture to the jury. U.S. Attorney Robert Stewart’s devastating cross of an alibi witness in a mega trial of 18 defendant’s known as the ‘Pizza Connection Case.” Bob Dekle’s cross of an expert in Ted Bundy’s last murder trial. U.S. Attorney Robert Stewart’s cross of Zacarias Moussaoui, who was prosecuted for his involvement in the 9/11 terrorist attack. Cross-Examination Handbook goes step by step through how to construct a concession-seeking cross that comports with the cross-examiner’s big objective—building the case or undermining the other side’s case.

Not Small: Nothing is worse than a small, nitpicky cross-examination. It not only bores the jury and makes no headway towards the examiner’s goals but also can turn the jurors against the cross-examiner. A cross should focus on major points and do it without exploring microscopic details. When is it common for cross-examinations to go small? Counsel often will cross a witness on minor inconsistencies between what the witness testified to and a prior statement. Just because the rules of evidence allow for impeachment with a prior inconsistent statement, doesn’t mean it should be pursued. Good judgment is called for. Is it a significant or insignificant matter? 

Poor preparation produces picayune points. When an attorney has not thoroughly planned the cross and wings it, that lack of planning often results in that attorney walking through the direct again, picking around the edges. The end result is a cross that repeats the direct and does not promote the cross-examiner’s big picture, is not to the point and is uninteresting.

Cross-Examination Impeachment with Visuals

 

At Seattle University Law School I teach an online course entitled “Visual Litigation and Today’s Technology". Cross-examination visuals are featured because they can be extremely powerful weapons for cross-examination. They can be used to gain concessions supporting your case theory and undermining the other side’s case theory. 

The text for the course is my book Visual Litigation: Visual Communication Strategies and Today’s Technology, published by Full Court Press, the publishing arm of Fastcase. The text offers examples of how visuals were used on cross-examination in notable cases, such as Abraham Lincoln’s cross-examination with a Farmer’s Almanac or the prosecutor’s cross-examination of Richard Hauptmann in the Lindbergh kidnapping/murder case with a ransom note and Hauptmann’s diary.

Visuals can also be very effective for impeaching a witness. For examples, impeachment visuals can include: a prior inconsistent statement either in a document or in a visual, such as a video deposition; a prior conviction—judgment and sentence document; a visual that establishes that the witness did not have personal knowledge about that which the witness testified; a visual that proves that the witness’s testimony is improbable; a visual that reveals the witness’s bias or interest; and a statement in a learned treatise that conflicts with the witness’s testimony.

“Visual Litigation and Today’s Technology” is a 2-credit course. In this Visual Litigation and Today's Technology online course, students interested in litigation learn how to integrate technology into their trial visual presentations. Just as visuals and technology have become a centerpiece in modern life, they also are the centerpiece in trial. Judges and jurors expect lawyers to use visuals with today’s technology.

The course is taught in the context of mock civil and criminal cases, giving students simulated real-world experiences working with visuals and cutting-edge technology. This experiential course will allow students in role-play assignments to plan the cross-examination of witnesses with visuals. 

This course is comprehensive in its exploration of visual communication strategies and technology, including, among other topics: the ethical and legal boundaries to what visuals may be displayed in trial; evidentiary foundations for visuals (animations, demonstrations, laser scanner images and so on); visual advocacy in both a pretrial venue and a courtroom, from opening statement through closing argument; the creation of visuals; litigation software, such as Sanction, TrialPad, and SmartDraw; and meeting the trial judge's expectations of a trial lawyer's competency when employing technology.

KEEP UP THE PACE DURING CROSS-EXAMINATION

No matter what you might think of F. Lee Bailey, he was a renowned cross-examiner.  This F. Lee Bailey’s pointer on cross-examination to keep the cross-examination questions moving along at a quick clip so that the witness doesn’t have time to concoct answers, is an excellent tip. As he pointed out being wedded to notes can slow down the pace. 

Moving at a fast pace, but not running over a witness, is a tenet that applies particularly well to the cross of an expert witness who will fill the air if counsel permits it. Nothing is more painful to observe than a lawyer who turns away from the expert on the stand and returns to counsel table, allowing the expert to expound in the vacuum provided by the lawyer who turned a back to a professional witness.  

Watch the video of Bailey’s cross-examination of Mark Furhman in the O. J. Simpson case to see how he kept the examination moving at a rapid pace. 

 

Cross-Examination Common Error, a Rookie Mistake

 

It is probably the most common error, a rookie mistake - the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .” 

The error is grievous. It violates Irving Younger’s 7th commandment: “Don't allow the witness to repeat his direct testimony.” Younger’s commandment directs the cross-examiner  to focus on accomplishing the goals of cross-examination which are to gain concessions that either bolster the cross-examiner’s case theory or undermine the opposing party’s case theory. If the cross-examiner instead allows or causes the witness to repeat the direct examination which contains things favorable to the opposing party, the examiner is defeating the purposes of cross. Worse than that, the examiner is repeating the information which the jury has already heard and that repetition will make it stick in the jurors’ minds. 

The Cause

Why would a cross-examiner ever have the witness repeat their direct examination? Why is it such a common mistake? The usual cause is poor preparation. Rather than having a well planned cross-examination, the cross-examiner mistakenly believes that it is possible to conduct a successful unscripted cross. Counsel has been taking notes during the direct examination and works off them to conduct the cross-examination.  Consequently, the examiner is reacting to what the witness testified to on direct, and thus repeats the direct examination. And, the examiner often does so in the order in which opposing counsel questioned the witness. 

The Cure

The cure that will prevent the cross-examiner from repeating the direct is to remember the core idea of cross-examination: Cross-examination is the cross-examiner’s opportunity to testify. Rarely if ever should cross-examination be done on the fly. It must be scripted to be effective. The examiner should know what the witness will testify to and that the examination will produce the desired responses.

The Two Exceptions

There are two exceptions to the rule that the cross should never repeat the direct. First, in those situations where the witness on direct testifies to information damaging to the other side’s case (such as when the other side it trying to pull the sting that is anticipated to be brought out on cross) or helpful to the cross-examiner’s case, then naturally it may be covered on cross. Second, in the odd case where the witness has been coached and memorized their testimony, the cross-examiner may want the witness to repeat direct. An example happened during the famous Triangle Shirtwaist Factory Fire trial when defense counsel’s cross revealed that a witness had been coached to give a memorized story by having the witness repeatedly tell her story in identical words during cross.