Tuesday, November 28, 2017


It is important to get law students out of the classroom and have them watch the real lives of trial lawyers. For my Comprehensive Trial Advocacy course, Seattle University law students attend a day in trial and report on what they observed. Consistently they praise this courthouse visit. It is satisfying to read the students’ reports and to learn how being in the courtroom can be such a rewarding learning experience for them. The following observation-report was written by Claire Charbonneau.

            The trial proceeding that I observed was a criminal proceeding under Judge Ramsdell in the Superior Court in the King County Courthouse on 10/17. I came to understand that the trial was in regards to the defendant’s assault charge; although initially upon entering the courtroom I was confused for multiple reasons. I first noted that defendant was testifying, but was not being directed by an attorney. Per his testimony, I came to be more confused about what his actual charges were due to the nature of that testimony. I noticed an attorney sitting across the room at the counsel table who I took to be the prosecutor. At this point I understood that the defendant was acting pro se, which was very unfortunate for him, because if anyone could have used an attorney, it was certainly this defendant.

            While the defendant was without question, an interesting individual, his testimony was extremely long winded, and he practically did the prosecution’s job for her. The defendant began with the direct examination of himself, his only witness. He began by telling the story of the charge at hand which involved the assault of his then girlfriend; however it took a long time for the story to arrive at this point, as he would trail off on loose ends and side stories that seemed to have nothing to do with the issue. Half the jury looked extremely bored, and the four corrections officers in the room often smiled at each other, amused by the testimony. The prosecutor thankfully made several objections to the scope of his testimony, hearsay, and in general to the time that the defendant was spending on the rabbit holes of his testimony. 

While parts were very slow and cringe worthy, the narrative did not lack for intrigue, as he told a tale of fighting with his girlfriend where he was blinded by perfume, broke his hand, fell on a Christmas tree while his girlfriend swung a hammer at him, and he pulled her down with him onto the tree. He then discovered a gun which he claimed she had placed under the seat of his truck. After that event, he failed to show up to work for several days, due to his broken hand, and left to the Tulalip Casino where he stayed at a motel and gambled while he was “percoceted out” by his own admission on his girlfriend’s Percocet pills. He made several other statements such as: “I’m no angel”, calling his girlfriend “every name in the book”, that he “has dated a lot of women, and spoils ‘em, because [he is] a gentlemen – as long as he ain’t mad”, that this woman (and others he later referenced) was a “vindictive woman” and that he “is a fighter”. He stated that although he is “not innocent” in many incidents that he later brought up, he was in this one. In one of the most cringe-worthy moments, which surely made every woman in the room dislike him, he said that “all women lie” and that “every man who is sitting in jail for a DV is there because a woman lied about it” because “that is what they do”.

After being prompted along by the prosecutor’s time objections and the judge, he later went on to testify about a laundry list of other crimes and incidents that had not been brought up by the prosecution. The prosecutor had to absolutely loving it, and the whole courtroom seemed shocked that he would freely offer up this information. He went on to detail his life story which included – but was not limited to the following. He was charged with assault on his ex wife, which he claimed was a lie, but also described as an event where they wrestled over a(n) amp and he backhanded (her) in the face. He then detailed a confusing relationship with another woman where he claimed he owned a ship used to fight pirates in Africa, which somehow led to an incident where this woman turned him in to homeland security, which led to some charges, and apparently another assault on her. Her claims in that case – as detailed by the defendant – were eerily similar to the ex wife’s claims and the present trial, which all involved beating, pinning (her) to the bed with his legs, and choking, or grabbing them around the throat. He claims the victim in the present case used homeland security’s discovery files against him to fabricated a similar claim, as the “mountain of discovery files” were in the home that they shared. He also apparently bought a helicopter from a man in Switzerland, that he was fixing up with a woman, against whom he was also charged for assault. There was an additional assault he did admit to, where he beat up a man who had hit a child. Lastly he testified that his first run-in with the law was an accessory to a robbery, which he claimed he was unaware of, he had only been living with this man, who he picked up as a hitchhiker, in the forest, in a van, with his then girlfriend. There was also colorful testimony about him “bleedin’ like a stuck hog”, drinking “Wild Turkey and Mountain Dew”, and running with a bucket of KFC, afraid for his life. Despite the lulls in the long winded stories, I was overall entertained. When he finally ended his testimony, he spoke about himself briefly in the third person, as if he was a lawyer, which confused the judge, counsel, and jury.

Of course after all of the testimony I just outlined the prosecutor hardly needed to cross examine the defendant. She impeached him by asking a few pointed questions abut the assaults and the charges he was found guilty of, and also why – if he was defending himself and afraid for his life in this case – he followed the police to her residence to serve a restraining order on the victim. She finished her questioning very quickly. He redirected, where he further detailed the above admissions, until the judge cut him off. There was some amusing commentary from t(h)e prosecutor and judge in regards to these long, incriminating tales, that got laughter from the jurors and the small group of spectators. Finally, the defendant rested.

After the jury had been dismissed for the day, the judge discussed the plans for the following day, asking the prosecutor whether she would be calling additional witnesses, and pointing out that “most of the information she would want has already been candidly offered up by the defendant” which got some more laughter from those present. She discussed the two witnesses she would be calling, and also wanted to spend time the following day discussing the jury instructions, particularly the self defense portion. The defendant was under the impression that he did not need to see them, though the judge tried to advise him that he would need to know the jury instructions as it would state the law by which the jury would determine his innocence or guilt. Again, this man really should have had a lawyer. The trial was an absolute mess for him.

Overall, I was pleased that I was able to observe a jury trial to see how the jury reacted to both sides. I could see that they were particularly affected by he length and confusion of the defendant’s ongoing testimony. I think they were grateful for every objection the prosecutor made, and happy she kept things extremely concise, which in my opinion was a good decision on her part, as the jury seemed exhausted. While the defendant’s story, was at times captivating, the take home message of this day of trial observation was certainly to always hire a lawyer, and never represent yourself. And likely also to not buy boats to fight pirates in Africa, or buy used helicopters from men in Switzerland.

This is such a gem in that it illustrates this axiom: If you represent yourself, you have a fool for a client. Thus, it will be also posted here.

Friday, November 17, 2017


Cross-Examination Handbook: Persuasion, Strategies and Techniques Second Edition (Wolters Kluwer 2014) explains how to take control in cross-examination. It is your turn to testify. All the essential skills and strategies you need are covered. And, the Handbook provides step-by-step instruction combined with outstanding examples from illustrious cases such as the John Scopes, Enron, Senator Stevens and O. J. Simpson trials.

Cross-examination skills training assignments for two criminal and two civil cases are provided for use in law school classes and professional skills development CLE workshops.


1. Introduction to Book, CD, & Website
2. Purposes of Cross & the Total Trial Approach
3. The Content & Concession-Seeking Cross
4. Constructing the Cross: Your Chance to Testify
5. Impeachment Cross: Reliability
6. Impeachment Cross: Report
7. Impeachment Cross: Reporter
8. Character & Conduct in Trial
9. Witness Control: Strategies & Techniques
10. Preparing the Winning Cross-Examination
11. Cross-Examining Expert Witnesses
12. Forgetters, Perjurers, Adverse Witnesses, Deponents, & More
13. Ethical & Legal Boundaries of Cross
14. Cases & Assignments

CD in pocket of back cover: Case Files for two civil & two criminal cases

TEACHER'S MANUAL (100 pages) with Actors' Guide on CD with instructions for witnesses who will be subject to cross-examinations.

Here is a sample review of Cross-Examination Handbook: "Having tried dozens of cases and having conducted hundreds of cross-examinations, I can say that this book will not only be something I review as part of trial preparation but is also a book to be given to new lawyers in our office. For years I have carved out 'thinking time' in my trial preparation to review McElhaney's Trial Notebook. I have now added this terrific book by Clark, Dekle and Bailey." Randy J. Cox, Boone Karlberg P.C., Missoula, Montana

Thursday, November 9, 2017


An effective cross-examination is one that is easy for the jurors to follow and has a dynamic impact on them. Are the jurors following your cross-examination? Or, are they lost? Is your cross-examination easy to comprehend? Or, is it just a jumble? Is the structure of your cross achieving your purpose? Or, is it just rehashing the direct? While a great deal of attention in trial advocacy texts and teachings is devoted to cross-examination techniques, such as ask only leading questions, less is spent on how to organize the cross. Consequently, many cross-examinations are disorganized and leave jurors in a quandary. You want a cross-examination that is organized into a dynamic and persuasive presentation. What follows is a republication of a checklist of do’s and don’ts for organizing your cross-examination.


James W. McElhaney, the trial lawyers’ sage, explained this principle as follows: “It is the theory of the case, then, that provides the starting point for organizing cross-examination. If we once again take organization in the broader sense – content as well as order – the first question is not just what to include, but whether to cross-examine a witness at all.
“The obvious answer is, do not cross-examine a witness unless it would help the case to do so. The only difficulty with that is knowing when it would help the case.
“Understandably, it is a point about which thoughtful lawyers can disagree. There are some, for example, who are quick to say ‘no questions.’ And there are some far more who ought to follow their example.” McElhaney’s Trial Notebook.

The primary goal of cross-examination is to either bolster your case theory or undermine your opponents. And,  the focus of the concession-seeking cross should be on making main points, not exploring minutia.


Because you have the jury’s attention when you begin your cross and because what they hear first will be more likely to be retained than what they hear later (rule of primacy) make the beginning of the cross count for something. If, on that rare occasion, you can decimate the witness at the start of cross, do it. But, more often, you can begin the cross by gaining the concessions that support your case theory or undercut the other side’s. Here, you start cross in a non-confrontational and friendly manner with a series of questions to which the witness should answer in the affirmative. Save your impeachment cross for later, and if you turn the witness to your own, abandon the impeachment.


Counsel listens carefully to the witness’s answers to opposing counsel’s direct examination and takes copious notes marking up those notes with points to make on cross. “Your witness” says opposing counsel, and the cross-examiner embarks on a cross that tracks those notes taken during the direct.  For at least two reasons, this is the worst organizational structure for a cross-examination. First, the order of questioning is dictated by opposing counsel rather than the cross-examiner. Second, inevitably, the cross-examiner rehashes the direct – “You testified on direct that . . .”


Think of your cross as a compilation of topical units, like short stories. Each one has a single topic to cover. These are main points, not minutia. For example, the topic could be the deficiencies in the qualifications of the other side’s expert witness. In Cross-ExaminationHandbook, we discuss how to brainstorm for and structure these topical units. Once you have formulated the topical units, organize those units into the best possible logical presentation.


Nothing helps the jurors more in their effort to keep up with your cross than providing them with sign posts along the road. Simply declare your topic: “Now, let’s talk about the data you relied upon in reaching your opinion.” This is not a question, but nobody ever objects. Everyone in the courtroom appreciates you telling them where things are heading.


Nothing is worse than a cross that ends with a fizzle rather than a bang. There is no excuse for a bad finish. You want to end strong because the jurors will remember best what you did last (principle of recency). Always reserve for your last line of questioning a powerful, invulnerable point founded on admissible evidence which the witness must concede or be impeached. Couple that strong point with your confident appearance and “No further questions,” and you have concluded an organized dynamic cross.