Friday, May 23, 2014


Years ago a friend of mine asked me (Bob Dekle) to watch a late night television show with him. In the show, a psychic summoned dead relatives from beyond the pale to talk to his guests. The show began with some appropriate music, a video of stars swirling in the galaxy, and a voice-over talking about communicating with the dear departed. The star came onstage and summoned the first subject to join him. After a few preliminaries, the psychic began his spiel, asking questions of the subject and then making remarkably accurate observations about the person whom the subject wanted summoned from the beyond. Before the ghost of the departed relative made his appearance, I said to my friend, “You see what he’s doing, don’t you?” My friend had no idea. I explained. “The psychic is picking the subject for information and then feeding it back to her.” My friend considered what I had said for a moment and then replied, “You sure know how to spoil a party, don’t you?”

Although I didn’t know it at the time, I had just witnessed my first “cold reading.” Cold reading is a technique used by psychics to extract information for use in conjunction with Tarot readings, séances, and the like.  Con artists also use the technique to extract money from their victims, and confidential informants use it to give the appearance of assisting law enforcement without really telling the officers anything that wasn’t already known. The Full Facts Book of Cold Reading gives a thorough description of the techniques involved. In reading that book, I was struck by the similarities between cold reading and concession-seeking cross-examination.
1.    Both techniques are tools of persuasion. In the one the audience for persuasion is the person being questioned, in the other the audience is the jury.

2.    Cold reading seeks to persuade the subject what wonderful talent the reader has; concession-seeking cross-examination seeks to persuade the jury what a wonderful case the examiner has.

3.    Cold reading seeks to achieve persuasion by discovering previously unknown facts to use in achieving persuasion; concession-seeking cross examination seeks to achieve persuasion by disclosing previously known (or strongly suspected) facts to use in achieving persuasion.
4.    Cold reading achieves persuasion by extracting facts from unwitting subjects; concession-seeking cross-examination achieves persuasion by extorting facts from unwilling witnesses.
5.    Both techniques work from general and non-controversial facts to specific and vital facts.
A cold reading might progress something like this:

Q. I’m getting the feeling that there is a significant person in your life whose name starts with J—perhaps Jane or Jamie or Joan, does that feel right to you?
A: Well, I don’t have any girlfriends, but my boss is named John.
Q: John is a significant person in your life?
A: Yes, very.
Q: This wouldn’t involve issues relating to John’s making unfair demands upon you?
A: No, nothing like that.
Q: I didn’t think so. So you have a cordial relationship with your boss?
A: Yes. I really enjoy working for him.
Q: John has more or less taken you under his wing?
A: Yes.
Q: Mentored you?
A: Yes.
Q: Tried in every way to help you to succeed and excel?
A: Yes.
Q: He might even be grooming you to take over his job when he retires.
A: Yes, that’s right. How on earth could you possibly know that?

Assume that John is the defendant in a lawsuit and this person is called as a witness on his behalf. A concession-seeking cross-examination seeking to lay the groundwork for an impeachment for bias might run something like this.

Q: You’ve worked for John for quite some time?
A: Yes.
Q: You have a cordial relationship?
A: Yes.
Q: You enjoy working for him?
A: Yes.
Q: He’s taken you under his wing?
A: Yes.
Q: Mentored you?
A: Yes.
Q: Helped you to excel in your job?
A: Yes.
Q: In fact, he’s mentoring you to take over his job when he retires next year?
A: Yes.
Q: You owe him a great debt of gratitude?
A: Yes.

The difference between the two is that the cold reader begins with a plausible guess, draws reasonable inferences from the facts admitted, and discovers a fact which convinces the subject he has true psychic powers. The concession-seeking cross-examiner begins with an uncontested fact and builds upon that fact with reasonable inferences and other known facts to the point of painting the witness into a corner where the witness must admit a disagreeable fact.

One of the best jobs of employing this technique which I have ever witnessed came in a double murder case occurring at a pool hall. The only eyewitness to the crime was the defendant’s brother, who steadfastly refused to testify. Finally, the witness was persuaded to testify in order to be released from a jail sentence for contempt of court. If he had been directly asked about the killing, he would have immediately [and somewhat truthfully] said “I didn’t see nothing.” The cross-examiner began the examination with non-controversial facts, such as the fact that the two brothers went out on the town the night the murder occurred. Moving slowly and methodically from that uncontested fact to other uncontested facts, the examiner slowly drew the noose tighter and tighter. By the end of the cross-examination the examiner had the witness standing outside the pool hall with his brother, who was angry over some slight perpetrated by one of the two men in the bar. The examiner slowly walked the witness through his brother’s opening the trunk of the car, removing a sawed-off shotgun, checking to see if it was loaded, and going back into the pool hall. Then the examiner had the witness describe the report of two gunshots followed by his brother leaving the pool hall and putting the shotgun back into the trunk. Mission accomplished.

The author of Cold Reading describes this technique as the “cream principle.” When creaming coffee, pour in a little at a time until you get it right. If you try to put it all in at once, you will likely ruin the coffee.  The author’s “cream principle,” as well as several other techniques he describes, can very profitably be used by the concession based cross-examiner. 

Friday, May 2, 2014


Coming Soon - Inaugural Advanced Trial Advocacy Institute – June 2

There will be a healthy dose of instruction on winning cross-examination strategies and techniques at the new week-long Advanced Trial Advocacy Institute (ATAI) that I and Professor Marilyn Berger are chairing. The course begins June 2, 2014. Seattle University Law School and the American College of Trial Lawyers are sponsoring this  CLE program. 31.5 CLE credits pending.

Focus on Cross-Examination

Cross-examination will be an emphasized component of the Institute because it is the most challenging trial skill to perfect. Besides a presentation on “Concession-Seeking Cross-Examination,” the faculty will demonstrate cross-examination techniques and the attendees will engage in cross-examining witnesses. Colette Tvedt of Shroeter Goldmark & Bender will conduct the cross-examination demonstration. Four workshops are dedicated to examining witnesses.   

Distinguished Faculty

The Advanced Trial Advocacy Institute program will be taught by an outstanding faculty of over 20 accomplished trial lawyers, judges and communication specialists, including: Amy Forbis (Pres. American Board of Trial Advocates); Thomas Lemly (Pres. Wa. State Committee of American College of Trial Lawyers); Karen Koehler; Jeffrey Tilden; Lisa Marchese; Judge John Erlick; and Craig Smith (Senior Trial Consultant, Prolumina – Litigation Strategies).

Benefits of this week-long course:

  *   Preparing and trying a case with guidance and supervision.
  *   Seasoned trial attorneys, as well as communication specialists,
       provide feedback on your performances.
  *   One-on-one video review of your presentation.
  *   Develop effective courtroom communication techniques.
  *   Understand today’s visual trial technology.
  *   In-depth discussion on trial ethics and avoiding pitfalls.

The course is designed for new lawyers who are seeking a firm foundation in the finest trial skills through more experienced trial lawyers who want to take their skills to a higher level.

Click Here to REGISTER for this Event.
The program will be held at Seattle University School of Law
Click here for more information on the SCHEDULE and here for information on our FACULTY
For questions, contact us at or (206) 398-4233.