Monday, January 17, 2011


To: Trial Advocacy and Clinical Law Professors
From: William S. Bailey, Adjunct Professor of Law, Seattle University

Prior to writing Cross-Examination Handbook, my co-authors Ron Clark, Bob Dekle and I thought through the implications of what we were about to begin. The fundamental question which loomed in our minds was, “Does this book really make sense?”

Our collective decades-long experience in teaching civil and criminal pretrial and trial practice in both law school and continuing legal education environments was of great assistance in answering this question. Our final conclusion? The time was right for a cross-examination book which provided all the information and structure to support a stand-alone law school class, while also offering guidance to all practitioners seeking to up the level of their game. In what follows, I hope to be able to articulate why it is that Cross-Examination Handbook is worthy of your attention and consideration as a part of the community of trial skills law faculty.

I began my legal education at Northwestern University in Chicago in 1971, when the winds of change from the often tumultuous 1960’s first started to reach the legal academy. As classes began my first year, some of the older professors seemed dismayed by the new variations in student appearance, dress and mannerisms. The structure and formality of law school steadily morphed as the l970’s went on. Clinical legal education was an integral part of this process, very much the new kid on the block back then.

Started with seed money from the Ford Foundation, Northwestern had one of the first legal assistance clinics formally attached to a law school, staffed by tenure track professors. “The Clinic,” as we students reverentially referred to it, became almost a way of life for some of my peers. It allowed us the opportunity to immediately apply all the “think like a lawyer” skills from the classroom in a variety of real life settings.

While the clinical faculty members were carried on the same roster with all the traditional faculty, in fact, there was a distinct air of second class citizenship for the new clinical upstarts. If I had to articulate the traditional faculty’s attitude, it would have been something like, “We provide students with all the vitamins and minerals they really need to be successful lawyers. Clinical education may be popular with the students, but it is akin to junk food, seductive to the palate, but with no real nutritional value.”

As long as the Ford Foundation grant money held out, the tension between the traditional and clinical faculty remained a subtle background presence, evident only behind closed door faculty meetings, where the oil and water failure to blend was on display. As the designated student representative on the Clinical Education faculty subcommittee, I witnessed this at first hand, quickly learning that my beloved clinic was facing a somewhat precarious future.

The moment of truth for Northwestern’s legal assistance clinic arrived with the task of replacing the soft Ford Foundation dollars with hard ones from the school’s operating budget. To their credit, the entire faculty gave the clinic a fair shot in this process, undertaking a longitudinal study which attempted to correlate both academic and career success with participation in the clinic.

The results surprised the skeptics-in fact, clinical education was not “desert,” but a culminating experience which challenged students to apply all that they had learned in the classroom, making it real, deepening the educational experience. From this point forward, the clinic at Northwestern was no longer regarded as an enclave of hippie dippy outliers in the basement of Thorne Hall, but rather, a vital and important part of the core mission of the school.
While this tale from long ago might seem unlikely now that clinical education is accepted widely, it helps to show how far legal education has come. A dynamic profession like the law must continue to change with the times, as must the educators who shape it. Law school curriculum over the last 40 years has done just that, keeping the best of the old, while adding that necessary to prepare graduates to meet all the new challenges. It is our belief that Cross-Examination Handbook is a part of this necessary evolution in legal education.

Trial practice courses have undergone a revolution in the last 60 years. Robert Keaton’s venerable book was one of the only sources of systematic instruction in the field in the l950’s and 1960’s. Alan Morrill’s “Trial Diplomacy” was a promising newcomer in the early l970’s, as were Gary Bellow’s and Jim Jeans’ books at around the same time. The National Institute for Trial Advocacy (NITA) also started to bring out its training materials then.

Fast forward to the end of the first decade of the 21st Century, with a number of books now available in the field of trial practice, including cross-examination. Why did my two colleagues and I believe that Cross-Examination Handbook would fill an unmet need, becoming the foundation for a successful stand-alone law school course? I hope to explain this now.
It is no secret that while civil and criminal filings are way up, the number of actual trials are way down. Prof Marc Galanter of the University of Wisconsin, among others, has studied these statistical trends and the causes for them. Are trials really headed toward extinction, or at least endangered species status? If so, then why focus on one component of trial practice in law school, cross-examination?

The short answer is that while trials may be down, the need for cross-examination skills is not. In fact, cross-examination itself is more important than ever before. Though an adjunct professor of law and clinical skills instructor since l980, I simultaneously have maintained an active civil trial practice over that time. Having a dual sensitivity as both a teacher and a practitioner has allowed me to do both more effectively. It also has provided a constant focus on the end game of clinical legal education-“Is what we are doing preparing our students to take their place and succeed in the practice.”

I have been out of criminal work for decades. As career prosecutors and now distinguished practitioners in the law school setting, my two co-authors Ron Clark and Bob Dekle are far better equipped to comment on the continuing importance of cross-examination in criminal work. However, in my own field of expertise, civil litigation, there is no question that, even though the number of civil trials is down, the amount of litigation is way up.

The fate of nearly every civil case is heavily dependant on how effectively lawyers depose the witnesses of the other side, lay, expert and managing agent. Every quality necessary for an effective out-of-court deposition in a civil case matches the skills necessary for a successful cross-examination in the courtroom. Even one well-executed deposition of an opposing witness can reveal the Achilles heel of an opponent’s case, forcing a settlement on very favorable terms. This is why, in my own practice, literally, I spend weeks preparing for the depositions of key witnesses, knowing that the fate of the entire case often hangs in the balance.

So, the answer to the question of “Why do a stand alone course on cross-examination when the number of actual trials is down?” is “Because unlike the other components of trial practice, cross-examination skills are more important than ever, even if many cases never see the inside of the courtroom.” Hence, cross-examination never will go out of style, remaining at the very core of what lawyers in litigation and trial practice must do well. As such, cross-examination retains continuing relevance in legal education. As almost any trial judge will relate, the current level of practice regarding cross-examination is far from optimal, giving us a further sense of purpose in writing this book.

How will our book and a cross-examination class associated with it work with other required law school classes? An effective cross-examiner must have a solid foundation in evidence, procedure, legal ethics and the case law, applying all this to the critical analysis necessary to a successful cross-examination. Our book allows students to take everything they have learned in law school and execute it in a total performance experience.

There are other books available on cross examination. What gives us the audacity to tell you that our book is better? First, we bring to it decades of collective experience actually teaching trial skills in a law school environment. We know at first hand the incremental structure needed to guide students along the path to skills mastery. We also love the challenge, thrill and privilege of teaching, realizing that the best written books stimulate the passion of both the teacher and the student. We sought to write the kind of book that we always have dreamed of having and using in our own classes.

Our book first distills the theory and practice of cross-examination step-by-step, applying the laws of evidence and professional ethics, using frequent examples. Our constant goal is to help the students build and internalize the necessary skills. We then have put together an exciting and diverse set of criminal and civil fact patterns to allow the students to retain what they have learned, to “use it and not lose it.”

In this sense, our book combines the best of all worlds, putting theory, strategy, tactics, evidence and ethics from other law school classes to work in simulated cases. There is no other cross-examination book out today which does all this. The teaching guide accompanying our book lays out all the necessary analysis that will allow you to facilitate exciting classroom discussions. Our fact patterns are taken from real life, designed to help the students take all they have learned to the next level. The Actors’ Guide with our book allows for more effective role-playing by the witnesses, making the classroom experience more real.

The other thing our book does is to incorporate all the latest thinking in communication strategy, particularly with regard to narrative structure. All the research demonstrates conclusively that human beings best absorb new information by stories. By contrast, collections of isolated linear facts often fall by the wayside. But people always will remember a good story. This is integral to our approach to cross-examination in the book.

Cross-Examination Handbook starts with Aristotle’s classic outline of story structure, then moves to the communication techniques used in our modern world. Our book shows how to combine storytelling techniques with legal analysis, culminating in effective communication. In this sense, our book, as well as the course it is intended to support, works well with the persuasive communication of other law school classes and moot court. Our common goal here is to build more effective legal thinkers and communicators.

My co-authors and I are very excited about all of the possibilities that Cross-Examination Handbook offers to us in our own law school classes. This is the book that we always have wanted, but never had up to now. This is why we have worked for the last nearly three years to make it a reality. This book is our best shot at meeting the continuing challenge that all of us face in legal education- to make law school more dynamic, effective and responsive to the needs of our students and the justice system we serve.

Most of all, not only does the stand-alone cross-examination course supported by our book work well with all other law school classes, it also promises to be a FUN class to teach, one which builds upon all the passion which drew you to being a law school professor in the first place!

We look forward to getting the benefit of all your thoughts, our esteemed colleagues in the community of trial skills educators. We appreciate very much your willingness to consider both using our book and of adding cross-examination as a stand-alone class to the curriculum of your law school. For our part, we stand ready to do anything within our power to make this a successful and positive experience for you.

Friday, January 7, 2011


Cross-Examination Techniques Demonstrated

Presumed Innocent, Scott Turow’s masterpiece thriller and courtroom drama, superbly illustrates how to conduct a winning cross-examination of an expert. The expert is forensic pathologist Doctor Tatsuo Kumagai, known to his friends as “Ted” and to others as “Painless.” Doctor Kumagai is called to testify in the murder trial of chief assistant prosecutor Rusty Sabich who stands accused of murdering Carolyn Polhemus, another assistant prosecutor.

Sandy Stern, Rusty’s defense counsel, performs a masterful cross. The film, starring Harrison Ford as Sabich, essentially replicates the novel’s cross-examination, which Turow carefully crafted for both realism and dramatic effect. Consequently, the film clip of the cross is an nice trial advocacy tool for teaching techniques for cross-examining an expert.

Some of the cross-examination techniques conveyed in both the book and movie include:

1. Character of the cross-examiner: The successful cross-examiner is one who comes across as a sincere seeker of truth. The examiner’s approach should be fair but firm and not abusive. When dealing with an expert, jurors allow an attorney more latitude to be confrontational than they will with a lay witness who is unfamiliar with the courtroom. Jurors recognize that the expert witness is a professional. Sandy Stern, as played by Raul Julia (pictured here), is dignified, fair and firm. He is graceful, knows where he is going and gets to the point.

2. Lock the witness into a story that can be disproven: The prosecution’s theory is that the victim was killed during a staged rape. Dr. Kumagai’s deductions are based upon the presence of spermicidal jelly being found in the specimen taken from the victim’s body and sent to the lab. Stern: “So this specimen, and the presence of spermicide is critical to your expert opinion?” and Kumagai agrees.

3. Deconstruct the witness’s story: Having locked Kumagai into his story, Stern destroys it. Stern gets the expert to concede that a woman who knew she could not conceive would not use a spermacide. Having locked that down, Stern asks to have that part of the testimony marked by the court reporter. He then confronts the expert with his own autopsy notes revealing that the victim had a tubal ligation.

4. Tell your story: Cross-examination is the examiner’s chance to testify - to tell the story of the case from the examiner’s perspective. The defense story is that Kumagai was a busy man during the time period when he conducted the autopsy of Polhemus and sent the wrong specimen to the lab for analysis. That specimen was found to be of Sabich’s blood type (today DNA analysis would have conclusively shown it was Sabich’s). Stern then forces the ultimate concession, as follows:

". . . Is it not likely that the specimen containing the spermicide, the specimen containing fluids of Mr. Sabich’s blood type, was not taken from the body of Carolyn Polhemus?"
Painless shakes his head again. But this is not denial. He does not know what occurred.
“Sir, is it not likely?”
“It is possible,” he finally says.
From the jury box, clear across the courtroom, I (Rusty) can hear one of the men say, “For Chrissake.”

5. The truth: Sandy Stern destroyed the expert. It was a winning cross-examination. And, Stern had a good faith belief for the line of questioning. But, was the defense story the truth? Presumed Innocent and the 2010 sequel Innocent, picking up the story of Rusty decades later when he is on the bench, answer that question.