LINCOLN LAWYER’S CROSS-EXAMINATION TRAP

If It’s Too Good To Be True, It Probably Is.

Nothing makes a point stick like a good illustration, particularly a good movie clip. The Lincoln Lawyer, now in theaters, is a good thriller, and it has a courtroom scene that can teach law students and inexperienced trial lawyers and remind veterans to be wary of traps laid on direct.

This scene in the movie is from The Lincoln Lawyer, (Grand Central Publishing 2005) by Michael Connelly. The story features Mickey Haller, criminal defense lawyer, whose office is a Lincoln Town Car. He practices law in Los Angeles. Haller’s main client in the story is Louis Ross Roulet who is charged with attacking a woman. A knife was found at the scene and the victim claims that Roulet put a knife to her neck.

Haller calls the defendant’s mother, Mrs. Windsor to testify, and she identifies her son’s knife and says that he carried it for four years to protect himself when he was showing houses as a real estate agent. Mrs. Windsor testifies that although her son had never been harmed, he knew a woman who had been raped and robbed by a man with a knife, and that experience caused him to always the carry knife.

Connelly writing in the first person as Haller describes the scene: “. . . She (Mrs. Windsor) had succinctly delivered to the jury the explanation for the knife, yet she had also left in her testimony a minefield that Minton (the prosecutor) would have to cross. Her direct testimony had covered no more than I had provided in a discovery summary. If he strayed from it, he would quickly hear the deadly click under his foot.”

On cross, Mrs. Windsor testified, “It happened June ninth two thousand and one.”
“’You’re sure?’
“’Absolutely.’”
“I turned in my seat so I could more fully see Minton’s face. I was reading him. He thought he had something. Windsor’s exact memory of a date was obvious indication of planted testimony. He was excited. I could tell.”

Here’s the lesson for trial lawyers and aspiring trial lawyers: If it’s too good to be true, it probably is. How could anyone remember a date four years ago? It must be untrue and she is impeachable. What happens next is a reminder that opposing counsel may have laid a trap and that interrogatory questions – who or how – should be avoided in most situations. The scene continues:

“Minton: ‘Was there a newspaper story about this supposed attack on a fellow realtor?’
“’No there wasn’t.
“’Was there a police investigation?’
“’No there wasn’t.
“’And yet you know the exact date. How is it that, Mrs. Windsor? Were you given this date before testifying here?’
“’No. I know the date because I will never forget the day I was attacked.’”
“She waited a moment. I saw at least three of the jurors open their mouths silently. Minton did the same. I could almost hear the click.”

Better to learn by watching another lawyer step on it than to learn by your own experience. Been there. Been there?

100 YEAR ANNIVERSARY OF THE TRIANGLE SHIRTWAIST FACTORY FIRE

The Tragic Disaster, the Labor Advancements and a Cross-Examination

Tomorrow, Friday March 25, 2011 marks the 100th anniversary of the worst disaster in New York before 9/11. On March 21, 1911, in Manhattan a fire broke out on the eighth floor of the Triangle Waist Company, New York’s largest blouse factory. 146 garment workers died, either in the fire itself or in jumping from the windows.

The public was outraged. The disaster caused the labor movement to grow and led to work place safety standards, the minimum wage and the New Deal. Thirty six statutes were passed setting factory safety standards.

New York Times have covered the anniversary and HBO is showing a short documentary on the disaster. Also, at the end of this page is a video of former New York Senator and President of the Triangle Fire Memorial Association President Serphim Maltese discussing the fire and its aftermath.

The Triangle fire catastrophe is remembered for these reasons, but it is also remembered for the criminal trial that followed and for one remarkable cross-examination.

The District Attorney filed manslaughter charges against the owners, who escaped from the roof. The allegation was that there was a practice of locking the exit doors to prevent unauthorized breaks by the factory workers and that the workers were unable to escape. The owners hired the best defense lawyer money could buy to represent them – Max D. Steuer. In Triangle: The Fire that Changed America, David Von Drehle, pp. 222-23 (Grove Press 2003) describes just how effective a move this was:

"his reputation (was) such that a man would pay an enormous retainer simply to ensure that … Steuer would not help his heirs challenge his will…(one) jurist…(called him) the “greatest trial lawyer of our time.”

The account of Steuer’s cross-examination prowess and the techniques that he used are explored in Cross-Examination Handbook. The owners were acquitted by the all male jury in less than two hours. The acquittal was attributed mostly to Steuer's cross-examination of the prosecution's last witness - a factory worker, whom Steuer got to repeat her story like a memorized script. In 1913, a civil suit resulted in $75 compensation for each deceased victim.

CROSS-EXAMINING HITLER

Cross-Examined In Open Court - Where Tyrants Fear To Tread

The most accurate indicator of the power of any method to uncover the truth is the fear it produces in the unscrupulous. Though it has been over 65 years since Adolf Hitler took his own life in a Berlin bunker, he remains the most monstrous, evil figure in all of history, causing the deaths of over 50 million people.

Yet, even with the rising power of the Nazi party behind him, Hitler was nervous when he was summoned to testify in a criminal trial in Berlin on May 8, 1931. The case involved a November 22, 1930 shooting of four young men in an attack by twenty or more Nazi SA storm troopers at a Berlin tavern called the Eden Dance Palace. Four of the attackers stood accused of criminal assault and attempted murder. A broader allegation also was made that this had been part of a plan of premeditated attacks and killings by the Nazi party itself.

Hitler had not yet seized total control of the government, so he was making strenuous efforts to present a much more moderate image in order to placate the German middle class. He had testified before in court cases, presenting the Nazis as committed to achieving their political goals through legal means. The Eden Palace trial would be different though, with the dogged pursuit of young lawyer Hans Litten putting Hitler on the defensive, causing him to lose control and then perjure himself.

Nazi propaganda chief Joseph Goebbels was “anxious” about the forthcoming court appearance by his boss, noting in his diary the potential for this to be “embarrassing.” His worry was well founded, as Hans Litten indeed put Hitler to rout.

Litten had been retained as private counsel by the three young men who had been shot that night, involved in the case alongside the prosecutor. Though the trial supposedly was about who shot whom, the implications went far beyond this, with an attempt to connect what happened that night with those higher ups Litten was determined to show in his cross-examination of Hitler that systematic violence was a regular part of the Nazi’s methods. Smart, cool and reserved, with a prodigious memory and knowledge of the law, Litten was just the lawyer to make this stick. While his questions always were delivered in a calm, even tone, they were noted by peers as being “penetrating,”

Hitler was confident, calm and under control when questioned by the judge. This all changed as soon as Litten took over, particularly when pressed about Nazi party support of a written statement by Goebbels advocating violence:

Q You said that no violent actions are carried out by the National Socialist Party. But didn’t Goebbels come up with the slogan “The enemy must be beaten to a pulp?”
A That is not to be taken literally! It means that one must defeat and destroy the opponent organizations, not that one attacks and murders the opponent….
Q Herr Hitler, you heard the question about appointing Herr Goebbels as Reich Propaganda Director [despite his statement in a training book advocating violence and revolution].
A I cannot say under oath whether I knew Goebbels’ book at that time…[he] must stay within the guidelines which I, as Party leader, give him.
Q Is it correct that Goebbels had already been made Party boss of Berlin in 1926?
A I cannot confirm the date. [it was correct]
Q You didn’t discipline or expel Goebbels, but instead made him Reich Propaganda Director. Mustn’t Goebbels’ example rouse the idea in the Party that the program of legality hasn’t gotten very far?
A [Hitler begins to stutter and search for an answer] The whole Party stands on the basis of legality and Goebbels likewise on this basis. He is in Berlin and can be called here at any time…
Q Has Herr Goebbels been forbidden to disseminate his text?
A I don’t know…
Q Did you promise Reich Chancellor Bruning to dissolve the SA in the event of your joining the administration….show[ing] that you yourself saw the SA as something illegal.
A [Hitler now is extraordinarily excited] I insist that Bruning has not offered me any participation in his government…Dissolving the SA would mean for me the end of the Party…
Q In your opinion, what is the spirit of the Free Corps [another Nazi subgroup]?
A The Free Corps spirit lived in those who believed that a change in the fate of the German nation could be brought about through….physical strength….
Q Do you also include the notorious crimes and killings that were committed by the Free Corps as a part of this spirit?
A [Hitler now is outraged]. I refuse to acknowledge that that kind of thing happened. The Free Crops committed no killings. They defended Germany.
Q Herr witness, is it correct that on the occasion of the so-called SA revolt last year you were accompanied on your tour of Berlin restaurants by armed SS men [for purposes of protection against the SA]?
A [Again outraged]. This is complete lunacy! In all the taverns I was greeted with stormy enthusiasm [Much laughter and merriment in the spectators gallery by Hitler’s unintended pun of “stormy enthusiasm” from the storm troopers.]….
Q I have just learned that this pamphlet is sanctioned by the Party, that it is sold at all Goebbels’ meetings and that it is available in all Party bookstores…
A [Hitler yells with a bright red face] Herr Advocate, how can you say that that is a call to illegality? That is a statement that can be proven by nothing!
Q How is it possible that the Party publisher took over this text, which stands in clear contradiction to the party line?

At this point, Hitler was saved by the judge, who overruled the question and refused to allow any further inquiry. The entry in Goebbels’ diary for that day shows just how shaken the Nazi higher-ups were by Litten’s cross-examination of Hitler. Goebbels admits that there was an “incriminating” sentence in his pamphlet and that the day began “gloomily.”

In keeping with his propaganda function, Goebbels’ attack on Litten led with anti-Semitism [Litten’s father, a law school dean, was Jewish, his mother was not]:

“The Jewish lawyer Litten has made himself guilty of an obvious deception of the court through his irresponsible claims. I leave the judgment of this to the public. I will permit myself to publish this letter in the press as soon as it is in the hands of the court.”

After Hitler’s dramatic appearance, the rest of the trial was anti-climactic. In closing argument, Litten argued that Hitler had perjured himself at least four times. The court’s decision ignored the Hitler element and focused on the inconsistencies of the fact witnesses, convicting three of the four defendants of breaches of the peace and trespassing.

Hitler never forgot this cross-examination, nor did his henchmen. Hans Litten was arrested on the night of the Reichstag fire, February 27, 1933. He was beaten and tortured for five years, with intermittent hard labor. He was transferred to a number of concentration camps, first as a political prisoner, then as a Jew. With no hope of release, only more of the same, despite being a member of a prominent German family, Litten took his own life at Dachau on February 5, 1938.

Although a number of memorials dedicated to Hans Litten exist in Germany and a few books have been written about him, he remains largely unknown today.

The basic information in this post came from Crossing Hitler, The Man Who Put The Nazis On The Witness Stand, by Benjamin Carter Hett, Oxford University Press(2008) .

QUINTILIAN'S CROSS-EXAMINATION TIPS

Concession-Seeking Cross is Nothing New

In Ancient Rome gentlemen were expected to know how to lead an army or to try a case. All young men of substance received training in trial advocacy, and there were a number of trial advocacy manuals available for study. Most of those works have disappeared, but a few survive. Aristotle’s On Rhetoric is probably the oldest surviving trial manual. Many of Cicero’s works are available in modern translations: On Oratory and On Invention are probably his best works. Most of the ancient authors concentrated on the making of arguments because they believed that taking testimony required no special skill. One writer disagreed, however. That writer was Quintilian, a successful trial lawyer, judge, and teacher of trial advocacy who lived during the reign of Vespasian.

In the fifth book of his Orator’s Education, Quintilian sets down guidelines for the examination of witnesses. These guidelines are an embryonic statement of the principles of concession based cross-examination which we set forth in Chapter 3 of our Cross-Examination Handbook. He first states the principles when talking about the examination of hostile witnesses, but later says that they apply with equal force to cross-examination. It might be interesting to read his words and compare them to ours.

In speaking of hostile witness direct examination, Quintilian had this to say: “But in the case of one who will not speak the truth unless against his will, the great happiness in an examiner is to extort from him what he does not wish to say. This cannot be done otherwise than by questions that seem wide of the matter in hand, for to these he will give such answers as he thinks will not hurt his party, and then, from various particulars which he may confess, he will be reduced to the inability of denying what he does not wish to acknowledge. For as in a set speech, we commonly collect detached arguments, which, taken singly, seem to bear but lightly on the accused, but by the combination of which we succeed in proving the charge, so a witness of this kind must be questioned on many points regarding antecedent and subsequent circumstances, and concerning places, times, persons, and other subjects, so that he may be brought to give some answer. After this he must either acknowledge what we wish or contradict what he himself has said. If we do not succeed in that object, it will then be manifest that he is unwilling to speak, and he must be led on to other matters that he may be caught tripping, if possible, on some point, though it be unconnected with the cause. He may also be detained an extraordinary time, that by saying everything and more than the case requires, in favor of the accused, he may make himself suspected by the judge, and he will thus do no less damage to the accused than if he had stated the truth against him.” (Book 5, Chapter 7, §§ 16-19).

When he turned to cross-examination, Qunitilian wrote: “Every question is either about some point within the cause or on some point without it. On matters within the cause, the advocate of the accused, as we also directed the accuser, may frequently, by putting questions a little widely and on subjects from which no suspicion will arise, and by comparing previous with subsequent answers, reduce witnesses to such a dilemma as to extort from them against their will what may be of service to his own cause. On this point, there is certainly no instruction or exercise given in the schools, and excellence in it depends rather on natural acuteness or experience than anything else. If any model, however, ought to be pointed out for imitation, the only one that I can recommend is that which may be drawn from the dialogues of the Socratic philosophers, and especially Plato, in which the questions are so artful that though the respondent answers correctly to most of them, the matter is nevertheless brought to the conclusion which the questioner wishes to establish.” (Book 5, Chapter 7, §§ 27-28).

Quintilian’s other words on direct and cross-examination and the examination of witnesses are as timely today as they were over a thousand years ago. If you are interested in reading everything he has to say on the subject, you can find his work online in a number of different locations.

YOU KNOW YOUR CROSS-EXAMINATION WAS EFFECTIVE WHEN . . .

The Judge Takes Over – Part 2 of Cross-Examination in the Evolution and Creationism Trials

This is the second discussion of the Dover trial in which the parents of children in the Dover, Pennsylvania school district sued to prevent the school board from introducing creationism into the curriculum under the guise of intelligent design. For Part One, click here. A comprehensive account of the Dover case was written by journalist Lauri Lebo in The Devil in Dover: An Insider’s Story of Dogma v. Darwin in Small Town America (The New Press 2008). The first post on the Dover case noted that like the Scopes trial, which by contrast involved the prosecution of a football coach for teaching evolution, the pivotal points were effective examinations of adverse witnesses. In the Scopes trial, it was Clarence Darrow’s examination of adverse witness William Jennings Bryan, and in the Dover bench trial, they were the cross-examinations of the board members.

Plaintiffs’ attorney Steve Harvey cross-examined board member Alan Bonsell about a donation of sixty copies of Pandas and People, an intelligent design text, to the school district. Prior to cross-examining Bonsell, Harvey had established the chain of events that led to the receipt of the books by the district. A fellow board member Bill Buckingham had solicited $850 from his church congregation, which he then put in his bank account. Buckingham then cut a check for that amount to Alan Bonsell’s father who then anonymously donated the books to the school district.

In his concession-seeking cross, Harvey began by having Bonsell admit that when asked about the donation of the books during his deposition, he never revealed he had received the check from Buckingham. Harvey read from the deposition Bonsell’s initial denials that he knew who donated and eventually his admission that his father had donated the books. And then Harvey extracted the admission from Bonsell that during the deposition he never mentioned anything about Buckingham giving him the $850 check.

You know your cross is effective when the judge takes over and skewers the witness. Journalist Lebo provides the full description of Judge Jones’ undressing Buckingham. Here is a taste of the Judge’s examination in a few excerpts from the book:

"As Jones listened, his expression grew darker. At the conclusion of the day’s testimony, he said he had a few questions of his own. He demanded to see the transcripts of Bonsell’s deposition. Harvey offered to provide a clean copy – his version was marked up with notes – later in chambers. 'I want it now, if you have it,' Jones said. 'Hand it up.'

". . . Finally, Jones looked up. 'When did you first become aware of the fact that your father was in possession of the $850 that was being donated to buy Of Pandas and People?' Jones asked.
'Well, Mr. Buckingham gave the check to me to pass to my father. He said this was money that he collected for donations to the book. So I gave it to him,' Bonsell said.
". . . Jones persisted. 'The specific question was asked to you, sir: You have never spoken to anyone-anybody else who was involved with the donation? And your answer was, I don’t know the other people. That didn’t say, who donated? That said, who was involved with the donation?' Jones said, 'Now you tell me why you didn’t say, Mr. Buckingham’s name.'
". . . By the time he (Judge Jones) was done with him, Bonsell was flapping his hands and stammering."

This interrogation was not the end for the judge. Lebo reports:

"Jones was under no delusion that no one had ever before lied in his courtroom. But there was a brazenness to what he had witnessed. He couldn’t ignore what Buckingham and Bonsell had done, he said. After he grilled Bonsell, Jones gathered copies of school board member’s depositions and court transcripts. He sent the information down to the federal courthouse’s second floor to the U.S. Attorney’s office with the recommendation that it investigate Dover’s school board members for perjury."

The Dover case illustrates how an effective concession-seeking cross in a bench trial can so reveal a witness’s exaggeration and misrepresentation that the judge feels compelled to make sure the truth will out and justice will be done.