Saturday, September 30, 2017


Impeachment cross-examination helps to build your case theory only in a negative way, by eliminating competition from the opposition’s theory. As we have previously noted, a cross that reveals that the witness’s testimony is essentially nonsense is one way to impeach.

If you can demonstrate that the witness is saying something illogical, you have gone a long way toward impeaching the witness. In a horrific domestic violence case tried a few years ago, a man claimed that his wife had received her injuries by jumping from a moving car. He explained that she had been high on drugs and acting out in bizarre fashion for the past two weeks. The problem with his story, which was pointed out quite well on cross examination, was that he and his wife had just the previous night arrived in Florida on a commercial flight from Nevada. One fertile area of cross examination proved to be a line of questions on how his severely drug impaired wife got through the TSA screening to get on the plane. The defendant also had some difficulty explaining why, after his wife jumped from the moving car, he took her home, hogtied her, and stuffed her in a closet rather than taking her to the emergency room.

Tuesday, September 26, 2017


Recently Paul Luvera discussed his 12 fundamental rules of cross-examination in the NWLawyer magazine, and it is republished here with its permission . Mr. Luvera is the past president of the Washington State Association for Justice and the Inner Circle of Advocates as well as a member of the American College of Trial Lawyers, International Academy of Trial Lawyers, and International Society of Barristers. He has taught at the Trial Lawyer’s College and is the only Washington lawyer inducted into the National Trial Lawyers Hall
of Fame. He can be contacted at  His blog is: www.
The following is Paul Luvera’s article:
Cross-examination can be challenging and intimidating for the attorney conducting it as well as for the witness.
The initial decision about how to conduct cross-examination depends upon the general approach of the lawyer, who the witness is, and what the testimony being offered is. Some lawyers are more intellectual and logical and, as a result, think of cross-examination from that standpoint. Their cross is focused chiefly on challenging the testimony or opinions of the witness. The downside of this kind of cross-examination is that it can become a confusing struggle between attorney and witness without any clear “winner.” While attacks on the substance of relevant and important testimony are important, be careful that your cross-examination doesn’t become just a confusing debate.
However, when the primary goal is to challenge the credibility of the witness—with only targeted challenges to the accuracy of the testimony—the focal point of cross-examination becomes the believability and trustworthiness of the witness rather than the specific testimony. A credibility cross-examination avoids the risk of the examination be- coming a bewildering argument between two people. If you undermine credibility, it doesn’t make a lot of difference what the witness testified to, if the jury doesn’t believe him or her. Further, in my experience, jurors tend to focus more on the general impression the witness and lawyer make rather than the substance of what the witness says.
Whatever approach you choose to use in conducting a cross-examination, consider these principles as you prepare:  
1. Make big points and ignore small ones.
Make your points on cross-examination major ones that are significant to your case and do it without irrelevant details. Ignore issues that aren’t important. Don’t bore the jury. Make cross-examination on the big issues short, to the point, and interesting.
2. Don’t wait for closing argument to explain important points made on cross. Don’t make the mistake of waiting until closing argument to try to ensure that the jury under- stands the significance of important points made in cross-examination. By asking follow-up questions during the cross-examination you can underscore for the jury why the point is important. It is better to deal with the witness trying to explain it away than to lose the drama of the moment or count on the jury to remember it long after it happened. For example, if you impeach
a witness, follow-up questions highlight the conflict: “Today you testified the light was green, but in your deposition a year ago you testified, under oath, that the light was red, isn’t that true? Yet both can’t be true, can they? Your recollection a year ago would be more recent than one year later, isn’t that so?”
3. Approach cross-examination as a big picture, not a series of details.
Cross-examination is a continuation of your client’s story. It is a repetition of the basic theme of your case. Don’t plan your cross-examination as if you were looking through a microscope for details. Make sure your cross-examination is one of the big pictures in the case. No one cares and few will understand a detailed, intellectual, and complicated cross-examination, nor do jurors care about issues they feel aren’t important. Moreover, when you waste time on details or the irrelevant, the jury will assume you are not being fair to the witness. Make your points big ones and important ones—think of a rifle and not a shotgun.
4. Don’t react to every issue your opponent raises. Your opponent may try to distract you and the jury by raising issues about insignificant matters. Having a major theme and sticking to it
is essential to a successful outcome. What you spend time talking about is what is important in the minds of the jury. Ignore the insignificant and concentrate on the important facts during cross-examination.
5. Have a basic theme and stick to the main story.
You have a story to tell based upon your case themes. You need to develop a central theme that highlights the positives of your case and explains the negatives as well. Stay on theme throughout the trial and be sure to weave your client’s story into your cross-examination.
6. Deal with negative issues head on.
The negative issues about your case must be acknowledged and dealt with openly and honestly. They can’t be ignored—they are like an elephant in the room. Plan your cross-examination by deciding how to deal with these issues, but be careful not to spend too much time doing so.
7. The right to ask leading questions is a gift. Use it. Use your right to ask leading questions in cross-examination. If done well, you can tell your client’s story through leading questions, irrespective of the answers the witness gives. A series of short and clear leading questions is a powerful way to communicate your client’s story to the jury.
8. The three most important rules are: Listen, listen, and listen. Listen carefully to the witness on direct examination for issues to ask about on cross. Good trial lawyers are not good note-takers. They are good listeners. If you have a prepared outline of questions you plan to ask on cross-examina- tion, you will often be looking at the outline or planning your next question instead of listening to the witness’s answers. As a result, you may think you received an answer to your question when you didn’t or you may miss important testimony that needs follow-up. Concentrate on what the witness is saying. Think while you work and listen, listen, listen.
9. If you decide to impeach a witness, do it right.
Too often, lawyers lose the drama of the moment while attempting to impeach on cross-examination because they don’t do it right. The first step for impeachment is to make sure the witness’s statement is significant enough to use. The impeaching material must be clearly inconsistent and not something obscure. The next step is to get the witness totally committed to the inconsistent statement before impeaching. If it is from a deposition, you need to identify the page and line number before bringing out the impeaching evidence. Lay a proper foundation before you attempt impeachment. Do it right or don’t do it at all.
10. Cross-examination should be brief and to the point. Talk is not cheap when it comes to what you spend your time on in cross-examination. Too many lawyers, after making an important point, go on to overdo it with too much talk. Don’t gild the lily. But don’t forget to pause long enough or otherwise make clear to the jury the importance of what was said. Make your major points short, simple, and to the point, then move on to the next subject.
11. Be firm but always fair in cross-examination. Your credibility depends upon the impression you make on the jury. At all times, you need to be firm, professional, and fair with the witness. Make sure you get an answer to your question, but don’t browbeat the witness to get it. Jurors start out by identifying with the witness, not the lawyer, and they regard the overly aggressive lawyer on cross-examination as being unfair. Jurors expect professional conduct from credible and trustworthy lawyers. Be professional and never be a bully or a showboat.
12. If you use exhibits or slides, do it right. There is nothing worse for a jury than cross-examination about an exhibit they aren’t shown. If you are going to talk about an exhibit, make sure it is admitted and that you show or share it with the jury. If you use illustrative slides on cross-examination, be sure they are well done and don’t violate the basics of good visuals. Slides that have too many words or print too small to read should never be used.

Historically, lawyers have argued about “the most important part of trial” without any consensus of opinion about the answer. One thing we do know, however, is that jurors are attentive to cross-examination. You can usually count on having the jury’s attention at the start of cross-examination, so plan it well, with a powerful start, and end with a strong finish. Follow the basics of good cross-examination to improve your chances of doing an efficient and effective job. The most import- ant secret to good cross-examination is preparation and planning.

Thursday, September 21, 2017


Thomas O’Toole Ph.D., and I have co-authored Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, which will be published by Carolina Academic Press in November 2017. Tom is President of Sound Jury Consulting and has practiced across the nation as a jury consultant since 2003 in nearly every litigation type. Jury Selection Handbook is part of the Lawyering Series, edited by Roger I. Abrams of Northeastern Law School.

Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for law students and fledgling lawyers who are acquiring their jury selection skills, as well as veteran trial lawyers who want to refresh and expand their approaches. The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions. The book can be adopted for law school trial advocacy courses and clinics as well as continuing legal education seminars. Online appendices provide examples of jury questionnaires, motions and responses to motions, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases. 

If you are a professor teaching in this field you may request a complimentary copy

Tuesday, September 19, 2017


David Boies

In the book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.


As we have explained in Cross-Examination Handbook and here, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way:

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows:

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?
“A: Well, you’re putting words in my mouth now.
“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“”I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony and the witness paid the consequences.


Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet retun to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and  is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”