Tuesday, December 18, 2018


Pace Law School Library has a gem of a webpage that is dedicated to famous and infamous cross-examinations (as well as direct examinations), which can be found by clicking here. Some of the cross-examinations have been featured on this blog, including Abraham Lincoln’s cross-examination of Charles Allen in the Almanac trial and Max Steuer’s cross-examination of a witness that revealed that the witness had been coached into a memorized story. These cross-examinations are also discussed in more detail in Cross-Examination Handbook: Persuasion, Strategies and Techniques.

An example of what the Pace Law School webpage has to offer is the British commentary of Solicitor Anthony Wooding (hence defence rather than defense and criticised vs. criticized) along with the transcript of the cross-examination of an expert witness in the 1930 trial of Arthur Rouse by Queen’s Counsel Sir Norman Birkett. This is the commentary and transcript of the cross:

“The following is an extract from a famous cross examination of an expert witness engineer by Sir Norman Birkett QC of Alfred Arthur Rouse who was tried for murder in 1930. Sir Norman Birkett was prosecutor and at the height of his powers. Alfred Rouse was accused of murdering a passenger in a car by setting light to it. The defence was that it was an accident. Defence counsel called an expert witness who claimed 'a very vast experience as regards fires in motor cars' and who asserted that the fire was caused by the junction in the fuel line becoming loose. The witness gave his evidence with great confidence. Sir Norman Birkett then began his cross examination......”

A (Birkett): What is the coefficient of the expansion of brass?

S (The Expert): I beg your pardon?

A: Did you not catch the question?

S: I did not quite hear you

A: What is the coefficient of expansion of brass?

S: I am afraid I cannot answer that question off-hand

A: If you do not know, say so. What is the co-efficient of expansion of brass? What do I mean by the term?

S: You want to know what is the expansion of the metal under heat?

A: I asked you: what is the co-efficient of the expansion of brass? Do you know what it means?

S: Put it that way, probably I do not

A: You are an engineer?

S: I dare say I am

A: Let me understand what you are. You are a doctor?

S: No

A: You are a crime investigator?

S: No

A: You are an amateur detective?

S: No

A: But an engineer?

S: Yes

A; What is the coefficient of the expansion of brass? You do not know?

S: No, not put that way
“This is a very powerful cross-examination technique. Although it has some flaws and is somewhat outmoded (see below) it still held as a classic teaching tool in law schools. The point is of course that it would have been difficult to challenge the witness directly on his conclusions without being something on an expert on car fires too, which Sir Norman was not. So Sir Norman goes instead for the jugular: the expert status itself. He also tightly controls the questioning, emphasizes it and directs it in such a way that the witness has nowhere to go.

“The cross-examination consists of a series of tightly paced 'closed' questions.
Today the repetition of the same point to give maximum drive to the same answer might be criticised as too crude (even as a 'jury technique'). The judge might well say 'Sir Norman, the witness has answered. let's move on'. Also there was of course a slight risk - a risk which Sir Norman probably considered but calculated as negligible having heard perhaps the too self-assured evidence in chief of the witness - that the expert did actually know the coefficient of expansion of brass, which would have destroyed the point. Maybe he had an immediate supplementary question should this have been the case.

“I did once see (in the Technology Court in Birmingham) an expert witness being comprehensively demolished on his expert credentials. Unfortunately for me, he was our witness. It was done very neatly but in a more subtle way. The other side had done their homework and found out that our expert chemist (the case was about the efficacy of a glue which had alleged failed causing gaps to appear in glazing: the glazing company was my client, the Defendant was the glue manufacturer) had previously published research and conclusions which were different from the ones he was now presented. A tough, truly confident and perhaps better prepared (rehearsed?) witness might have been able to stick to his guns and say, yes but I later saw that this research was wrong for xyz reasons and I reached opposite conclusions. But I think they calculated on the other side that he would be too taken aback by being reminded of his previous different conclusions that he would stumble. And he did. The other side's counsel I noted was made a QC soon afterwards.

“Whatever the pros and cons and indeed theatre of these cross-examination techniques one must not lose sight of the fact that their success or failure can have life or death consequences for a case. That was literally the case for poor Alfred Rouse. The defence expert witness was discredited. Alfred Rouse was found guilty of murder. His appeal failed and he was hanged at Bedford prison on 10th March 1931.”

This sample from the Pace Law School webpage is both enjoyable and educational. The lessons are timeless:
            Don’t do battle on the expert’s turf; rather, go after the expert’s qualifications, basis for opinions and so on. Don’t ask open-ended  questions; rather ask short, closed-ended questions.

Saturday, June 23, 2018


Attendees at Washington Association of Prosecuting Attorneys Summer Training

Just returned from Lake Chelan, Washington where the Washington Prosecuting Attorneys Association conducted its Summer Training. My subject once again was “Great Cross-Examinations and Techniques” and the lessons are drawn from great cross-examinations in history and in the movies. As usual it was well received because of the subject matter. Also, we play trivial pursuits and I give away Cross-Examination Handbook as a prize, among others.

As part of the course materials, I provide the attendees (shown above with the great David McEachran the Watcom County Prosecutor standing – he’s in his last year and heading towards retirement) with a list of 4-Star Movie Favorites, many of which contain classic cross-examinations. Here is the list:

4-Star Movie Favorites
Ronald H. Clark

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 is 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.  My co-author, Marilyn J. Berger, produced three educational documentary films in the series, Lessons from Woburn. The Untold Stories" with Henry Wigglesworth.  The films have been used in over 100 law schools.    

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. 

A Time to Kill (Warner Brothers, 1996, Directed by Joel Schumacher) Based on a John Grisham novel.

Amistad (Dream Works  1997, Directed by Stephen Spielberg) Anthony Hopkins won the Academy Award for playing John Quincy Adams.  Amistad involves trials centering on an 1838 rebellion on a Spanish slave ship, the Amistad.  A  federal trial court decided that the initial transport of the African slaves was illegal and that the Africans were free, not slaves.  Former President John Quincy Adams argued before the United States Supreme Court which affirmed the lower court’s finding.  In 1842, the Africans went home.

Anatomy Of A Murder (Columbia Pictures, 1959, Directed by Otto Preminger, music by Duke Ellington) Movie is based on a best selling novel by Robert Travers.  Travers was the pen name of John Volker, prosecutor, fisherman, and a Michigan Supreme Court judge from 1957-1959.  Jimmy Stewart wins Best Actor Academy Award.  The inspiration for the book was the 1952 Big Bay Michigan Lumberjack Tavern murder trial.  The defendant killed the tavern's proprietor, Mike Chenowith, claiming that Chenowith had raped his wife.

Bananas (MGM, 1971, Directed by Woody Allen) The scene where cross-examines himself is a classic.

Caine Mutiny (Columbia Pictures, 1954)  Best Actor Academy Award to Humphrey Bogart, based on Pulitzer Prize winning novel by Herman Wouk.

Chicago (Miramax, 2003, Directed by Rob Marshall), Academy Award for Best Movie in 2003.   Chicago was a 1927 play, which became a 1927 silent film, a 1942 romantic comedy film Roxie Hart, the 1975 stage musical Chicago, and then the 2002 movie musical.  Chicago concerns two women convicted murderer who are on death row together in Jazz-age Chicago.  The inspirations for the play and then movies were the murder trials of two women, Belva Gaertner and Beulah Annan, both of whom were acquitted at trial.

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.

Freck Point Trial (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 www.aspenadvocacybooks.com  

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. 

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.

Legally Blonde (MGM, 2001, Directed by Robert Luketik).

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.

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. 

Philadelphia (Clinica Estetico, 1993, Directed by Jonathan Demme). Tom Hanks wins Oscar for Best Actor.  The movie is based on the 1987 Geoffrey Bowers, suit against the law firm Baker & McKenzie for unfair dismissal in an AIDS discrimination case. 

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. 

Rainmaker  (Paramount Pictures, 1997), Directed by Francis Ford Coppola) It’s based on a John Grisham novel.

The Case Against 8 (HBO 2014) Directed by Ben Cotner and Ryan White who won the Directing Award: U.S. Documentary at the Sundance Film Festival for their work on the film. This documentary recounts the legal fight to overturn California’s Proposition 8 which only permitted marriage between a man and a woman. David Boies and Theodore Olson are featured.

The Fugitive (Warner Brothers, 1993, Directed by Andrew Davis), Tommy Lee Jones won the Oscar for playing Deputy United States Marshal Samuel Gerard.  The movie is based on the popular television series by the same name, starring David Jansen.   The series was based upon the Sam Sheppard case.  Sheppard was convicted of killing his wife and sentenced in 1954 to prison.  However, his conviction was overturned by the United States Supreme Court because of the prejudicial pretrial publicity.  F. Lee Bailey represented Sheppard who in 1966 was acquitted at the retrial.

The Pelican Brief (Warner Brothers, 1993, Directed by Alan J. Paluka, who also directed the Presumed Innocent, based on best-selling novel by lawyer Scott Turow). Pelican Brief is based on a Grisham novel.

The Shooting of Big Man (Creative Common Sense, 1979, Directed by Eric F. Saltzman)  Documentary of a assault with intent to kill case from arrest through trial in Seattle, Washington in 1979.

The Staircase (Sundance, 2004, Director - Jean-Xavier de Lestrade), Documentary about a murder in Durham, North Carolina.

The Verdict (20th Century Fox, 1982, Directed by Sidney Lumet who also directed Twelve Angry Men)  The 1980 book on which The Verdict movie was based was written by Barry Reed, a Massachusetts’s lawyer, with screen play by David Mamet.  Barry Reed was a mentor to Jan Schlichtmann, who was the trial lawyer who filed suit against W. R. Grace and Beatrice Co. over the contaminated drinking water deaths in Woburn, Massachusetts.  The case was written about in the book A Civil Action and later made into a movie by the same name.

Twelve Angry Men (United Artists, 1957) Directed by Sidney Lumet who also directed The Verdict).

Witness for the Prosecution (United Artists, 1957) Directed by Billy Wilder and starring among others Marlene Deitrich and Charles Laughten. This is a courtroom drama set in the Old Bailey which was adapted from a play by Agatha Christie. 

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 that the eye witness Charles Allen’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.

Monday, June 11, 2018


Houston - Hurricane Harvey Regional Training

Last week I spoke on “Great Cross-Examinations and Techniques” at the 2018 Hurricane Harvey Regional Training conducted by the Texas District and County Attorneys Association. My half-day presentations were at Victoria College in Victoria, Texas on June 6; South Texas College of Law in Houston on June 7; and the Jefferson County Courthouse in Beaumont on June 8.

The Hurricane Harvey Regional Training program was developed because hurricane Harvey devastated much of the Texas coast from Corpus Christi to Beaumont, and had a severe economic impact, which prevented prosecutors and their investigators from attending past continuing legal education courses. The Texas District and County Attorneys Association developed the Regional Training program to meet the need for this needed and overdue training. It was a joy to make these presentations for such a worthy cause.

Great cross-examinations in history and on film can teach great trial techniques. They provide lessons in what works in a courtroom and what doesn’t.  With the aid of famous movie clips of cross-examinations and actual crosses in legendary trials, the presentation explores the best in cross-examination skills and strategies. 
This “Great Cross-Examinations & Techniques” covers:

  • How to identify and select the content for a winning cross
  • Techniques for controlling evasive and other difficult witnesses
  • Methods for constructing a persuasive, storytelling cross
  • How to successfully cross-examine expert witnesses
  • Construction cross-examinations
  • Demolition cross-examinations
  • Character and conduct of the effective cross-examiner
  • Crosses in historical trials – O. J. Simpson, Scopes, McMartin Preschool, Zacarias Maussaoui trials among others
  • Memorable, instructional movie cross-examinations from Anatomy of a Murder to the Case against 8 documentary.