NINE GOLDEN RULES FOR CROSS-EXAMINATION

British barrister David Paul Jones’s Rules of Cross-Examination wrote these Nine Golden Rules of Cross-Examination a century and a half ago. These Rules are worth posting again here because they will serve a trial lawyer well.

1.                  Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions--all the soul--is there.   

                      

2.                  Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The mental reservation of the witness--is often manifested in the tone or accent or emphasis of the voice.

3.                  Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

4.           An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth.

5.                  But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.

6.                  Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game--partial and temporary success may otherwise end in total and remediless defeat.

7.              Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.

8.            Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.

9.                   Thus, as you rise to cross-examine a witness, you should be armed with the skill to adopt the style required for this particular witness and jury, the technique to search out the truth, the knowledge of guidelines that have developed over the centuries, and, most important, the wisdom to discern the proper combination of style and technique you need to serve well the consummate role of the cross-examiner--the truth giver.

For other rules (Irving Youngers Ten Commandments) for cross-examination, can be found here along with a link to a youtube video of Younger.

PACING DURING CROSS-EXAMINATION

Bailey in OJ Simpson Trial

Renowned cross-examiner F. Lee Bailey’s pointer on cross-examination is to keep the cross-examination questions moving along at a quick clip so that the witness doesn’t have time to concoct answers. Excellent tip. As he points out being wedded to notes can slow down the pace.

Moving at a fast pace, but not running over a witness, is a tenet that applies particularly well to the cross of an expert witness who will fill the air if counsel permits it. Nothing is more painful to observe than a lawyer who turns away from the expert on the stand and returns to counsel table, allowing the expert to expound in the vacuum provided by the lawyer who turned a back to a professional witness. 

Watch the video of Bailey’s cross-examination of Mark Furhman in the O. J. Simpson case to see how he kept the examination moving at a rapid pace.

GREAT CROSS-EXAMINATION MOVIES

This post lists of some of my favorite 4-star great cross-examination movies. The movie descriptions include some background – most of the movies are based on actual cases or are documentaries of the actual cases. Movie clips can enliven a lecture on cross-examination. Below is a baker’s-dozen movies along with what the film clips from the movies can be used to demonstrate. What have I missed?

Bananas (MGM, 1971, Directed by Woody Allen) Woody Allen plays the witness and the cross-examiner and creates the perfect cross.  It’s hilarious and a fun digression during a presentation on cross.

Caine Mutiny (Columbia Pictures, 1954) Best Actor Academy Award to Humphrey Bogart, based on Pulitzer Prize winning novel by Herman Wouk. During a court martial, Bogart, playing Lieutenant Commander Queeg, obsessively rubs two metal balls together in his hand and displays his paranoid personality.

Case Against 8 (HBO 2014) This documentary tells the story of the case against Proposition 8, the California Proposition that limited marriage to only a man and a woman. The protagonists are David Boies and Theodore Olson, who had previously been on opposite sides of Bush v. Gore. The portion of the film in which Olson shows how Boies extracts the truth from witnesses during depositions and cross is a valuable teaching tool – “Perry Mason moments”.

 
A Civil Action (Paramount, 1998, Directed by Steven Zaillian) Based on Jonathan Harr’s book A Civil Action. The case upon which the book and movie are based on Anne Anderson, et al., v. Cryovac, Inc., et al. 96 F.R.D. 431. The case involves the polluting of the Woburn, Massachusetts water supply with toxins which results in the deaths of the townspeople. The citizens hire Jan Schlichtmann to sue. See the movie The Verdict, below, for the connection between Schlichtmann and the author of the book upon which The Verdict was based. During a cross-examination, Travolta’s Schlichtmann asks the “Why” question and suffers the consequences.

Erin Brockovich (Universal Films, 2000, Directed by Steven Soderbergh) Erin Brochovich, a legal assistant, goes after Pacific Gas and Electric Company for polluting the water supply. Julia Roberts wins the Academy Award for Best Actress and the real Erin Brochovich appears in the movie as a waitress. Literary license is taken in the film: Massey’s partner, not Massey, represented Brochovich in the automobile accident case and Brochovich was Miss Pacific Coast, not Miss Wichita. At the outset of the film, Brochovich testifies at a trial because she has been injured in a car crash when an ER doctor’s car ran into her car. When the doctor’s attorney aggressively cross-examines Brochovich, she loses her composure. Nice clip to illustrate the importance of preparing your witnesses for cross.

A Few Good Men (Castle Rock Entertainment, 1992, Directed by Rob Reiner) The movie is based on a play by David Sorkin who got the idea from his sister who was in Navy JAG went to Guantanamo Bay Naval Base to defend marines who almost killed a fellow Marine in a hazing ordered by a superior officer. Cruise’s cross of Nicholson is a classic, showing how to lock in a witness and get the concession – “You ordered the code red!”

Freck Point Trial (Wolters Kluwer Aspen Publications, Directed by Gretchen Ludwig) This movie is a trial advocacy training film with veteran actors doing everything from jury selection through closing argument. The movie comes with the book Trial Advocacy: Planning, Analysis and Strategy by Berger, Mitchell and Clark. For more information visit the website here.

Inherit the Wind (United Artists, 1960, Directed by Stanley Kramer, who also directed Judgment at Nuremberg) The movie is based on the Jerome Lawrence and Robert Edwin Lee 1955 play. It is inspired by the 1925 trial of John T. Scopes who was convicted of teaching Dawin’s theory of evolution in a Tennessee high school science class (hence called “The Scopes Monkey Trial.” Scopes was ordered to pay a minimum fine. The play liberally drew from the transcripts. Scopes was represented by Clarence Darrow, and William Jennings Bryan prosecuted. Spencer Tracy, playing the Clarence Darrow type character (called Henry Drummond in the movie) cross-examines Frederick March, playing the William Jennings Bryant type role (called Matthew Harrison Brady in the movie). Among other things, the cross shows how to reduce a position to the absurd.

Judgment at Nuremberg (Roxlom, 1961, Directed by Stanley Kramer who also directed Inherit the Wind). Maximilian Schell won the Academy Award for Best Actor. The actual Katzenberger trial was a subplot of this movie. In a Nazi show trial, Leo Katzenberger, a Jewish businessman and Nuremberg community leader was convicted of having an affair with a young Aryan woman, and sentenced to death. During the Nuremburg trials, the presiding judge at the Katzenberger trial was convicted and sentenced to life imprisonment. (cross)

Murder on a Sunday Morning (Direct Cinema, 2003, Directed by Jean-Xavier de Lestrade) Academy Award winning documentary, Documentary about a murder in Jacksonville, Florida. (wide variety)

My Cousin Vinny (20th Century Fox, 1992, Directed by Jonathan Lynn). Marisa Tomei an Oscar for Best Supporting Actress. The writer, Dale Launer, explains the inspirations for the script as follows on his website: 

“The next movie was one he wrote and produced - an original screenplay called HIS COUSIN, VINNY. This was one of his very first movie ideas - inspired by the fact that some lawyer in California took 13 attempts to finally pass the bar exam. 
He took a trip down south to do story research, starting in New Orleans, where he picked up a car, drove up through Mississippi, over to Alabama and down to the gulf coast. Along the way his car got stuck in the mud - which he worked into the story. He also noticed grits on every menu - which also got worked into the story. He stopped in the town of Butler, knocked on the door of the district attorney and had a chat with the deputy DA who reminded him of actor Lane Smith. This character found its way into the story (and Lane Smith played the part in the movie). Launer noticed they have gigantic cockroaches down there and that was massaged into a scene, but the director took it out for reasons that still mystify Launer. A screech owl too made it into the story. Everyone he met was very friendly and helpful, but when he told them he was making a movie that took place in the south - they'd get very concerned - afraid that Hollywood movies always made them look like bumpkins. That too woven weaved into the story.” 

Cross-examination pointers that My Cousin Vinny can be used to illustrate include: (1) concession-based cross – the witness must concede how long it takes to cook grits and  (2) lack of personal knowledge – one elderly witness’s eyesight prevented her from seeing and another witness couldn’t see because of the trees and bushes blocking his view.

Place in the Sun (Paramount Pictures, 1951, Directed by George Stevens, who won an Oscar for Best Director) The movie is based on An American Tragedy by Theodore Dreiser. The book was inspired by the 1906 murder case in which Chester Gillette was convicted of killing Grace Brown, his ex-girl friend who was pregnant and wanted Gillette to marry her. The murder took place in upstate New York at Big Moose Lake where Gillette took Brown out on a boat, hit over the head with a tennis racket, leaving her to drown. In 1908, Gillette was electrocuted. The Raymond Burr demonstration breaking an oar at the end of cross illustrates that you need to end your cross with a bang, not a whimper.

The Staircase (Sundance, 2004, Director - Jean-Xavier de Lestrade), Documentary about a murder in Durham, North Carolina. This lengthy documentary (6 hours and 24 minutes) has numerous examples of cross-examinations and shows a witness being trained on how to testify.

Young Mr. Lincoln (20th Century Fox, 1939, Directed by John Ford). Although the movie is about Abe’s first case after he began practicing law in 1837, the movie trial is actually based on one of his much later cases from 1857. In that case, Lincoln’s client Duff Armstrong was charged with murdering James Metzker. Lincoln, using judicial notice, established on cross-examination that the eye witness Sovine’s testimony was false because the witness could not, as he claimed, have seen the shooting at a distance of 150 feet by moon light on that date according an almanac.

EYE CONTACT DURING CROSS-EXAMINATION

Bailey in the OJ Simpson Trial

Legendary cross-examiner F. Lee Bailey stressed the importance of keeping eye contact with the witness during cross-examination. In Cross-Examination Handbook, we use Bailey’s impeachment of Detective Mark Furhman as an illustration of how to contradict a witness. Watch the video to see Bailey at work in clips of his cross-examinations in the O. J. Simpson case.

Bailey emphatically states that you should never take your eyes off of the eyes of the person you are cross-examining because they are the window into the witness’s mind. They will tell when the witness is fudging or outright lying. If the person is a practiced liar, he points out that their expression never changes. As you watch the video clips of his cross-examinations, you can see him adhering to this principle.

To maintain eye contact, Bailey says the cross-examiner must cross-examine without notes. Leave your notes behind and only if you must go to counsel table and check them before resuming the cross. While eye-to-eye contact is critical, the vast majority of trial lawyers should have their notes in front of them or nearby. Why? Because they are not F. Lee Bailey’s. Most lawyers who attempt cross-examination without notes fail. They move from subject to subject, becoming impossible to follow. They repeat what was covered during direct, giving strength to the other side’s case. They fail to take advantage of the opportunity that cross-examination provides to tell the examiner’s story of the case and emphasize the cross-examiner’s themes.

Eye contact can be maintained while using notes of the type we describe in the Cross-Examination Handbook because they are simple and easy to reference. Counsel merely glances at the notes when necessary, then looks the witness in the eyes while both asking the question, listening to the answer and asking follow-up questions.