THE VELVET HAMMER DUELS WITH AN EXPERT WITNESS

Karen Koehler Cross-Examines an Expert

Karen Koehler, known by her adversaries as the “Velvet Hammer,” is a trial lawyer with Stritmatter Kessler Whelan Coluccio, an Adjunct Professor at the University of Washington Law School, a prolific writer and a guest columnist here. What follows is her insightful trial report on her cross-examination of a defense vocational expert:

Oh Blast It! You do the math. I wake up at 7:45. Court starts at 9:00 and on an average day it takes me a little over an hour to make the drive, park, wait in the security line, and run up the seven flights of stairs. And that doesn’t include feeding the dog and letting her do her business.


I jump out of bed, pull the covers back up and prop the pillows (yes, even in times of emergency, I will make the bed). Throw on black uniform hanging on door knob. Put in contacts. Shake out hair. Slap onto my face a few dashes of this and that. Feed the dog. Rinse raspberries that I’ll eat in the car. Make bagel for lunch plus nuts. Run back to say goodbye to my daughter still living at home. Ask her to take the dog out. Hop into car. It is 8:03.

Traffic is medium heavy until I get to the freeway then stop and go. Typical. I reach for the raspberries. Forgot them. Darn. (I eventually make it to court eight minutes late, but the judge is a few minutes behind so whew.).

The opposing vocational rehabilitation counselor is first up this morning. I talk to my partner as I drive in. "How are you going to cross him?" "I’m going to engage him." "Oh, you’re going to wing it." "No, I’m going to engage him." "Oh, you’re going to wing it." "Nooooo, I’m going to engage him." "What’s the difference?" "There’s a big difference."

My good friend Bill Bailey and I teach UW law students trial advocacy. The governing professor gives a lecture. Then in clinic, Bill and I do things (usually) completely the opposite. This gets us into trouble but apparently not enough to get us fired. To cross an expert, the students are instructed by the governing professor to prepare a great outline and only ask leading questions. Here’s what I say. The art of asking leading questions and grilling experts was developed centuries ago. Times were different back then. The law was actually considered to be a noble profession. Now lawyers are viewed one step above or below used car salespeople, depending upon who is doing the poll. If you ask leading questions because you only want the jury to focus on what you are saying, it may backfire – because anything that comes out of your mouth will be viewed with suspicion. If you shut down an expert and don’t let them explain – it looks like you are hiding important things from the jury or trying to twist the expert’s words.

Cross can be high drama in trial. Pre-scripted, detail oriented questions are approaches that work for many lawyers. I just don’t feel that it works well, for me. I like being in the moment. I like hand to hand combat. I like the thrill of moving toward an outcome without worrying about whether I am walking a path correctly in the process. I like locking eyes. I like being Tom Cruise to their Jack Nicholson (A Few Good Men’s trial scene – one of my absolute favorites). I like them not knowing where I’m coming from. Or going.

I develop my outline of the defense vocational expert during direct:

• $
• List
• Aptitude tests ≠ neuropsych tests
• Tests ≠ real life
Now comes the fun part. En garde!

I won’t recount all of it, but here are the two things that tickle me the hardest. First, I ask him a simple question – what is he being paid on this case. He doesn’t know. He can’t guess. He can’t estimate. You know, if he had just given a ballpark amount on this case, I would have left him alone. But he wants to play dumb. So I want to show the jury just how dumb dumb can be. (Pretty dumb).

Second, I want him to get off his throne. I ask him to write out T’s injuries on the paper board. He doesn’t want to. He’s not a medical doctor. Surely since you read the ten thousand pages of documents (he waved them around to the jury during direct), you can list us the conditions. He whines. The judge tells him he can use his notes. Nope, still doesn’t want to. Opposing counsel makes an objection that he’s not a medical doctor (well I’m glad that’s straight). I ask isn’t it important for him to know the conditions of the person he is evaluating. Still don’t wanna. I’m Zorro. Slicing his clothes, nicking him here and there. Eventually the opposing vocational expert heaves himself out of his chair. He manages to outwardly conceal his anger (but I can feel it). And this is what he writes:


1. Concussion
2. Depression
3. Anxiety
4. Pain/physical
5. Stress
He quickly sits back down. Hahaha. Not exactly right. Instead of grilling him on each item, I just pick one. Number 4. What parts of her body were causing pain or physical complaints. What do you think – does he have a ready answer. Is he sharp and right on point. Uh that would be no. My little rapier is placed against a tender part. I can insert it and be done with it. But I don’t. Because I want the jury to finish the deed.

Time to go over instructions and a few motions. I’ve gotten an email. My mom is in the hospital. I won’t violate HIPAA but I can say this. If your mother is 77 and Chinese and won’t do anything unless she first consults with a pendulum (in this case a polished rock on a silver chain). And if she won’t take western medicine and relies upon supplements that come in a green box and are written in Chinese. And she can’t read Chinese. Then you know what my family is dealing with.


Drive to the hospital. Two of my daughters, my daughter’s boyfriend, my sister and brother are there. My mom is feeling better. She asks, " How’s trial going?" "Fine." "Are you winging it?" "What?" "Well, you came into the case just before trial – so are you winging it?" I respond with something about being a quick study and that my style is to engage. She looks at me and says, "Yeah, you’re winging it."


Karen


Karen Koehler | SKWC
200 2nd Ave West
Seattle, WA 98119
P: 206.448.1777
www.stritmatter.com
www.karenkoehler.com
www.twitter.com/k3velvethammer

THE AUDIENCE OF CROSS-EXAMINATION

Whenever we rise to our feet to conduct the examination of a witness, we must always be cognizant of our audience. One group of jurors might think a cross-examination brilliant while another might think the lawyer a bumbling fool or—worse yet—an arrogant vulgarian. We have not done our client any good when we perform a cross-examination that makes the evening news but loses the jury.

Some examinations which history remembers as shining examples of the advocate’s art actually did nothing to advance the examiner’s case before the jury. Clarence Darrow’s “cross-examination” (it was actually an adverse witness direct) of William Jennings Bryan, which was immortalized in the Spencer Tracy-Fredric March movie Inherit the Wind, is remembered by posterity as a tour de force of the cross examiner’s art. But the jury never heard it.

Another famous cross-examination which failed to advance the examiner’s case occurred over 2,000 years ago in the law courts of Athens. Socrates had been summoned before the Athenian court and charged with the capital offenses of impiety and corrupting the youth of the city, and he defended himself against the charges with a rigorous cross-examination of his chief accuser, Meletus.

When we read Plato’s transcript of that cross-examination in the Apology of Socrates, we see that Socrates was anything but apologetic as he systematically dismantled his accuser:

Q: Come hither, Meletus, and let me ask a question of you. You think a great deal about the improvement of youth?
A: Yes, I do.
Q: Tell the judges, then, who is their improver; for you must know, as you have taken the pains to discover their corrupter, and are citing and accusing me before them. Speak, then, and tell the judges who their improver is.
A: [No answer].
Q: Observe, Meletus, that you are silent, and have nothing to say. But is not this rather disgraceful, and a very considerable proof of what I was saying, that you have no interest in the matter? Speak up, friend, and tell us who their improver is.
A: The laws.
Q: But that, my good sir, is not my meaning. I want to know who the person is, who, in the first place, knows the laws.
A: The judges, Socrates, who are present in court.
Q: What do you mean to say, Meletus, that they are able to instruct and improve youth?
A: Certainly they are.
Q: What, all of them, or some only and not others?
A: All of them.
Q: By the goddess Here, that is good news! There are plenty of improvers, then. And what do you say of the audience,—do they improve them?
A: Yes, they do.
Q: And the Senators?
A: Yes, the Senators improve them.
Q: But perhaps the ecclesiasts corrupt them?—or do they too improve them?
A: They improve them.
Q: Then every Athenian improves and elevates them; all with the exception of myself; and I alone am their corrupter? Is that what you affirm?
A: That is what I stoutly affirm.
Q: I am very unfortunate if that is true. But suppose I ask you a question: Would you say that this also holds true in the case of horses? Does one man do them harm and all the world good? Is not the exact opposite of this true? One man is able to do them good, or at least not many;—the trainer of horses, that is to say, does them good, and others who have to do with them rather injure them? Is not that true, Meletus, of horses, or any other animals? Yes, certainly. Whether you and Anytus say yes or no, that is no matter. Happy indeed would be the condition of youth if they had one corrupter only, and all the rest of the world were their improvers. And you, Meletus, have sufficiently shown that you never had a thought about the young: your carelessness is seen in your not caring about matters spoken of in this very indictment. And now, Meletus, I must ask you another question: Which is better, to live among bad citizens, or among good ones? Answer, friend, I say; for that is a question which may be easily answered. Do not the good do their neighbors good, and the bad do them evil?
A: Certainly.
Q: And is there anyone who would rather be injured than benefitted by those who live with him? Answer, my good friend; the law requires you to answer—does anyone like to be injured?
A: Certainly not.
Q: And when you accuse me of corrupting and deteriorating the youth, do you allege that I corrupt them intentionally or unintentionally?
A: Intentionally, I say.
Q: But you have just admitted that the good do their neighbors good, and the evil do them evil. Now is that a truth which your superior wisdom has recognized thus early in life, and am I, at my age, in such darkness and ignorance as not to know that if a man with whom I have to live is corrupted by me, I am very likely to be harmed by him, and yet I corrupt him, and intentionally, too? that is what you are saying, and of that you will never persuade me or any other human being. But either I do not corrupt them, or I corrupt them unintentionally, so that on either view of the case you lie. If my offence is unintentional, the law has no cognizance of unintentional offences: you ought to have taken me privately, and warned and admonished me; for if I had been better advised, I should have left off doing what I only did unintentionally—no doubt I should; whereas you hated to converse with me or teach me, but you indicted me in this court, which is a place not of instruction, but of punishment. I have shown, Athenians, as I was saying, that Meletus has no care at all, great or small, about the matter. But still I should like to know, Meletus, in what I am affirmed to corrupt the young. I suppose you mean, as I infer from your indictment, that I teach them not to acknowledge the gods which the State acknowledges, but some other new divinities or spiritual agencies in their stead. These are the lessons which corrupt the youth, as you say.
A: Yes, that I say emphatically.
Q: Then, by the gods, Meletus, of whom we are speaking, tell me and the court, in somewhat plainer terms, what you mean! for I do not as yet understand whether you affirm that I teach others to acknowledge some gods, and therefore do believe in gods and am not an entire atheist—this you do not lay to my charge; but only that they are not the same gods which the city recognizes—the charge is that they are different gods. Or, do you mean to say that I am an atheist simply, and a teacher of atheism?
A: I mean the latter—that you are a complete atheist.
Q: That is an extraordinary statement, Meletus. Why do you say that? Do you mean that I do not believe in the god-head of the sun or moon, which is the common creed of all men?
A: I assure you, judges, that he does not believe in them; for he says that the sun is stone, and the moon earth.
Q: Friend Meletus, you think that you are accusing Anaxagoras; and you have but a bad opinion of the judges, if you fancy them ignorant to such a degree as not to know that those doctrines are found in the books of Anaxagoras the Clazomenian, who is full of them. And these are the doctrines which the youth are said to learn of Socrates, when there are not unfrequently exhibitions of them at the theatre
A: I swear by Zeus that you believe absolutely in none at all.
Q: You are a liar, Meletus, not believed even by yourself. For I cannot help thinking, O men of Athens, that Meletus is reckless and impudent, and that he has written this indictment in a spirit of mere wantonness and youthful bravado. Has he not compounded a riddle, thinking to try me? He said to himself: I shall see whether this wise Socrates will discover my ingenious contradiction, or whether I shall be able to deceive him and the rest of them. For he certainly does appear to me to contradict himself in the indictment as much as if he said that Socrates is guilty of not believing in the gods, and yet of believing in them—but this surely is a piece of fun. I should like you, O men of Athens, to join me in examining what I conceive to be his inconsistency; and do you, Meletus, answer. And I must remind you that you are not to interrupt me if I speak in my accustomed manner. Did ever man, Meletus, believe in the existence of human things, and not of human beings?… I wish, men of Athens, that he would answer, and not be always trying to get up an interruption. Did ever any man believe in horsemanship, and not in horses? or in flute-playing, and not in flute-players? No, my friend; I will answer to you and to the court, as you refuse to answer for yourself. There is no man who ever did. But now please to answer the next question: Can a man believe in spiritual and divine agencies, and not in spirits or demigods?
A: He cannot.
Q: I am glad that I have extracted that answer, by the assistance of the court; nevertheless you swear in the indictment that I teach and believe in divine or spiritual agencies (new or old, no matter for that); at any rate, I believe in spiritual agencies, as you say and swear in the affidavit; but if I believe in divine beings, I must believe in spirits or demigods; is not that true? Yes, that is true, for I may assume that your silence gives assent to that. Now what are spirits or demigods? are they not either gods or the sons of gods? Is that true?
A: Yes, that is true.
SOCRATES: But this is just the ingenious riddle of which I was speaking: the demigods or spirits are gods, and you say first that I don’t believe in gods, and then again that I do believe in gods; that is, if I believe in demigods. For if the demigods are the illegitimate sons of gods, whether by the Nymphs or by any other mothers, as is thought, that, as all men will allow, necessarily implies the existence of their parents. You might as well affirm the existence of mules, and deny that of horses and asses. Such nonsense, Meletus, could only have been intended by you as a trial of me. You have put this into the indictment because you had nothing real of which to accuse me. But no one who has a particle of understanding will ever be convinced by you that the same man can believe in divine and superhuman things, and yet not believe that there are gods and demigods and heroes. I have said enough in answer to the charge of Meletus: any elaborate defence is unnecessary; but as I was saying before, I certainly have many enemies, and this is what will be my destruction if I am destroyed; of that I am certain; not Meletus, nor yet Anytus, but the envy and detraction of the world, which has been the death of many good men, and will probably be the death of many more; there is no danger of my being the last of them.
The reader cannot help but applaud Socrates’ skill in exposing the absurdity of Meletus’ accusations, but the Athenian jury nevertheless found Socrates guilty. What went wrong? Meletus was an Athenian everyman. When Socrates insulted Meletus he insulted every member of the jury by proxy. The cross-examination itself probably wouldn’t have lost the case for Socrates, but he did other things to alienate the jury and insure his conviction. (Among other things, he told the jury he was the smartest man in the world and suggested to them that he should be treated as a hero rather than punished as a criminal).

We might well ask why the smartest man in the world would pursue such a suicidal course of action. Socrates, who was in his 80’s, was less concerned about winning his case before the jury than he was about vindicating himself to posterity. His cross-examination of Meletus was a resounding success at achieving the objective of vindicating him to posterity.

As practitioners, we will seldom represent clients who will want to sacrifice their cases on the altar of achieving some other objective. We must always remember that our objective as trial lawyers is to win the case at trial. In order to do that we must win the jury. We must tailor our cross-examination to appeal to the jury we have in the courtroom.

CROSS-EXAMINATIONS IN THE EVOLUTION AND CREATIONISM TRIALS

The Scopes and Dover Trials

Cross-examination Handbook delves into the Scopes trial, focusing on Clarence Darrow’s examination of adverse witness William Jennings Bryan utilizing the reduction-to-the-absurd technique to defeat him. And, some say that the ordeal contributed to Bryan’s death five days after the trial.

While the 1925 Scopes trial involved the prosecution of a football coach for teaching evolution in violation of a Tennessee statute, a converse case alleging that elected school board members were trying to force religion, called intelligent design, into the school’s curriculum was filed in 2004. Kitzmiller et al. v. Dover Area School District, was brought by 11 parents of children in Dover, Pennsylvania, and cross-examinations of the school board members were the crowning jewels in the plaintiffs’ case. The full story of the Dover case is chronicled by journalist Lauri Lebo in The Devil in Dover: An Insider’s Story of Dogma v. Darwin in Small-Town America (New York Press 2008).

Depositions of the school board members served as the building blocks for plaintiffs’ counsel’s cross for it was during the depositions that they unexpectedly prevaricated. During board meetings, the members, particularly Alan Bonsell and Bill Buckingham, had publicly stated their concern that the biology curriculum contradicted fundamental religious beliefs and their desire to introduce creationism into the classroom. Their public statements had been recorded and reported in the news.

Through concession-seeking questioning, plaintiffs’ lawyers set out during the depositions to confirm the board member’s creationist remarks. They planned to use the concessions to get a temporary restraining order based on the United States Supreme Court decision of Lemon v. Kurtzman that prohibited the teaching of creationism in the public schools. But, the board members decided to either claim they didn’t remember or to deny that the subject of creationism came up at board meetings. The recordings of the board meetings were conveniently erased. Eventually the journalists who reported on the meetings testified at the trial that the board members had indeed discussed creationism.

During board member Buckingham’s deposition, he repeatedly swore that he did not know anything about an anonymous donation of sixty copies of Pandas and People, an intelligent design text, to the school district. This set up plaintiffs’ attorney Steve Harvey’s cross-examination of Buckingham at trial. Harvey produced Buckingham’s $850 check made out to the father of fellow board member Alan Bonsell’s and on the subject line of the check was written “Pandas and People books.” Alan Bonsell channeled the books through his father to the school district.

Having caught the witness’s lie with the check, Buckingham admitted he convinced his church congregation to contribute the money, which he then put in his bank account. Harvey then read Buckingham’s deposition in which he repeatedly claimed he didn’t know where the books came from. Journalist Lauri Lebo gives this account of what happened next.

As Harvey read his words back to him, Buckingham fidgeted. His cane kept getting stuck in a crack in the witness stand. Buckingham found it distracting. But everyone else in the courtroom seemed focused on the one point Harvey was driving home. Buckingham tried to hide the source of the money because it revealed his religious motivations.

Finally, Harvey stopped reading and glared. “Mr. Buckingham, you lied to me . . . isn’t that true?”
“How so?” Buckingham said.
“By not telling me you took a collection,” Harvey said.
“I did not take a collection,” Buckingham said.

Shortly after that Judge Jones, whom the journalist describes as having “his jaw clenched” stopped the line of questioning stating, “. . . you’ve made the point very effectively . . .”

Harvey’s cross was persuasive; it told the plaintiffs’ story that the board members were trying to introduce creationism, disguised as intelligent design, into the public schools and were willing to go to great lengths, including lying, to conceal their motivations. Beyond that, as will be discussed in a part 2 discussion of the Dover case, the cross drove Judge Jones to take extraordinary measures. Just as Darrow’s examination of Bryan in the Scopes trial was a key to the outcome, so too were plaintiffs’ counsel’s examinations of board members important to the outcome of the Dover trial.

CROSS-EXAMINATION WEBSITE UNVEILED

Visit the New Cross-Examination Website

Just launched is the Cross-Examination Handbook WEBSITE – just click here to visit it. This website is dedicated to the Handbook and everything involving cross-examination.
Features of the website include the following:

• News and reviews
• Tips on cross
• Teacher’s materials – description of the Teacher’s Manual for professional development CLE workshops and law school courses and clinics
• Inside the book – more in depth description of the contents of the book
• About the authors
• Cases – synopses of the case files and assignments contained on the CD that comes with the book and are for use in CLE programs and law school classes
• Links to valuable websites
• Events where the authors will be speaking
• Videos of cross-examinations