Wednesday, September 28, 2022

Cross-Examining Experts: Make Their Expert Yours

Prior articles here (Cross-Examination: Think My Cousin Vinny and  Catching the Truth on Cross-Examination) focus on the CONTENT of cross-examination. The core concept is that the primary purpose of cross-examination is to gain concessions and those concessions make up the content of your cross. Impeachment is only a secondary goal. Each concession that you are seeking is the truth that the witness must admit or stamp the answer given as a lie mistaken or ridiculous because you can prove the truth that is sought, or the truth just makes common sense. 

Many experts are particularly susceptible to concession-based cross-examination because they want to remain credible in the scientific community and don’t want to bend or break the truth with their testimony. Some experts, yes, will exaggerate, mince words and evade. This is particularly true with the soft sciences, such as psychiatry or psychology. Dr. Dean Hawley, a pathologist in Indiana, put it this way: “Is the expert qualified? Is the expert truthful? If the expert is qualified and truthful, make the expert your star witness.”

Now, watch the prosecutor do a concession-based cross-examination of the defense expert in the manslaughter trial of Dr. Conrad Murray for killing Michael Jackson. The prosecutor turns the defense expert into the prosecution’s star witness.


Here are three examples of low hanging fruit for a cross-examiner of a qualified and truthful expert. First, make the expert concede the validity of the science. Second, have the expert concede that your expert used the proper scientific technique. Third, have the expert concede that your expert has an excellent reputation in the scientific field. 






Thursday, September 22, 2022

Catching the Truth on Cross-Examination

 


We are examining the THE FOUR Cs of CROSS-EXAMINATION as follows: 

1st – CONTENT – how to select the content of your cross

2nd – CONSTRUCTIONS – how to construct the cross – form of the questions. Transitions. Sequencing.

3rd – CHARACTER – how to behave during cross so project fairness to the jury

4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

In the first post explained that the primary purpose of cross is to gain concessions that bolster your case theory or undercut your opposing party’s case theory. Impeachment is only a secondary purpose.   In the second post explored how the CONTENT of cross should be made up of concessions to the truth. You can design such a cross by asking: What must this witness concede or stamp the answer a lie, mistaken or ridiculous. 

Now let’s travel back in time to a courtroom in New York. We’re in the District of Manhattan. The trial lasted from October 24, 1985 to March 2, 1987. It involved $ 1.65 billion heroin smuggling and money laundering, and the trafficking stretched from Sicily to Brooklyn to Brazil to small pizzarias in the Midwest. It was a MEGA TRIAL with 18 defendants. 

Here is the courtroom layout showing where the players were positioned (the defendant Greco and his lawyer Larry Bronson can be seen in the last row at the bottom:


 The following from Shana Alexander’s book – THE PIZZA CONNECTION – it’s January 1987 in the Manhattan courtroom:

Larry Bronson's defensive Sal Greco is focused on his client’s need to prove that he was not in a Bagneria farmhouse in early March 1980 watching the heroin quality control test. Bronson will show he was quietly busy at home in New Jersey. He calls Greco's good friend and tax accountant, Justin Pisano, a man who keeps detailed date books. 

Under patient examination by Bronson, the witness goes through a precise accounting of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts, and to visit nearby pizzerias with his client in order to compare their businesses with that of Greco's pizzeria in Neptune city. 

Stewart’s cross examine of Pisano becomes this prosecutor's finest hour. He concentrates on the March date book entries.

On March 2, yes, I drove to see Greco, Pizano says and we had a leisurely dinner.

“You told us yesterday you were in no rush, right?”

“Yes”

“And that's the truth, the whole truth and nothing but the truth.”

“Yes.”

“Then what is this appointment for 7:00 PM with Traviatta?

 “Just a tax appointment early March as income tax time and I made many Sunday night appointments to serve my tax clients.

“What is Travis first name where does he live?

 “I don't remember. I don't even think I do their taxes anymore.” 

 Stewart remembers. He says pizano was 35 miles away from Greco's pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera.

Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.

“Are you an opera fan?”

“Nope. Only been to opera one opera in my life, when I was in high school.”

Stewart shows the witness, and the jury, the Sunday evening newspaper opera listings for March 2, 1980, at the New York State theater at Lincoln Center: La Traviata

Bronson objects. “Misleading the witness, Your Honor. His witness tax client is named Traviatta with - with two tts. 

And the advertisement for the opera is spelled TRAVIATTA, right?” Stuart asks.

“No it's Traviata”, says Pisano gamely.

“La Traviata”

“Right, I don't see the comparison to Traviatta.” 

“Except for the time. That's a coincidence, isn't it?”

Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, March 16, at one in the afternoon.

“Are you referring to Carmen? Carmen Sangri, who I no longer do?” 

“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listings for that Sunday afternoon. Pisano looks, and agrees this is truly an amazing coincidence.

Spectators have begun to giggle. But Stewart is not finished. He directs the witness’s attention to his diary entry for the following Sunday at 7:00 PM. “Is this a tax client of yours?”

The giggling turns to guffaws. The notebook says “Barber of Seville.” 

Over the laughter Pisano suddenly remembers that he had a girlfriend back then who was crazy about opera, and whose birthday was sometime in March, so “she picked three operas she wanted to see - but we never made any of them.”

 “You just made that up, didn't you,” says Stewart, barely audible over the waves of laughter. Leval (the Judge) has turned Crimson. Stewart remains, as usual, absolutely poker faced, and as the good-natured Bronson, shaking with laughter, has lowered his head to his desk and tears are running down his cheeks.

Stewart caught the truth. Because Sal Greco wouldn’t concede he went to the opera, he stamped his answer ridiculous. The point is that either way the witness answers, the cross-examiner succeeds.



Monday, September 19, 2022

Cross-Examination Content: Think My Cousin Vinny

 


This and a following series of posts focus on the methodology for a winning cross-examination: THE FOUR Cs of CROSS-EXAMINATION and this one will rely on My Cousin Vinny to illustrate the lesson.

1st – CONTENT – how to select the content of your cross
2nd – CONSTRUCTIONS – how to construct the cross – form of the questions. Transitions. Sequencing.
3rd – CHARACTER – how to behave during cross so project fairness to the jury
4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

In the last post explained that the primary purpose of cross is to gain concessions that bolster your case theory or undercut your opposing party’s case theory. Impeachment is only a secondary purpose. The goal is to capture the truth from the witness. If you visited the last post, you watched David Boies extract the truth from the opposing party’s key witness. 

If you take away nothing else from this article, remember to this question when you are thinking about CONTENT of your cross: What must the witness admit or stamp the answer – a lie, mistaken or ridiculous. The witness must give you the truth or suffer the consequence because it’s the truth. You can prove it by direct or circumstantial evidence or it just makes plain common sense. That’s what Boies did; he forced the witness to realize what the truth was and then the witness had to give it up. As the witness acknowledged, it was like a train wreck.

Now we can watch My Cousin Vinny orchestrate a train wreck using the methodology.



Vinny asked himself: What must this witness admit or stamp the answer either a lie, mistaken or ridiculous? And, you saw how the witness had to concede the truth.




Sunday, September 18, 2022

Have a Perry Mason Moment with Your Cross-Examination

 



This and the following series of articles here will focus on the methodology that is key to an effective cross-examination. The methodology has four components: 

1st – CONTENT – how to select the content of your cross

2nd – CONSTRUCTIONS – how to construct the cross – form of the questions. Transitions. Sequencing.

3rd – CHARACTER – how to behave during cross so project fairness to the jury

4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

So, where do we begin preparing the content of cross-examination? We start with an understanding of the two purposes of cross and the reasons behind them.

We begin by asking: What is the purpose of cross-examination?

To answer the question, watch a clip from the documentary - The Case Against 8 – it chronicles the effort to overturn California’s proposition 8 which as you may recall was a ballot proposition banning same sex marriage in California. Theodore Olson, who was solicitor general, recruited David Boies who had been on the other side of Bush v. Gore, to be his co-counsel in the lawsuit.

Watch Olson and Boies discuss the purpose of cross-examination and how it can be the concept that shapes what you pursue during cross:


David Boies’ PURPOSE in cross was to CAPTURE THE TRUTH. The truth that built his case against 8.

As he put it: Before you can get a witness to admit the truth you have to get the witness to understand what the truth is.

Having the primary purpose of cross being to build your case theory is nothing new. The second-best book on cross-examination was written by a New York assistant district attorney who practiced in the 1880s and 1890s and was famous for his superb cross-examinations. The book is the Art of Cross-Examination. In the Art of Cross-examination, another trial lawyer Emory Buckner wrote: “More cross-examinations are suicidal than homicidal.” He attributes this to a mistake in conception as to the purpose of cross. He wrote: “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The primary purpose of cross is to gain concessions that construct or bolster our case theory. Think of cross as an opportunity to persuade the jury of your case theory. Impeachment is a secondary purpose.

Three other reasons exist for using cross to bolster your case theory. First, studies have shown that one admission on cross is equal to ten pieces of evidence on direct. Second, it’s easier to gain admissions than to impeach – isn’t it? Third, if you get concessions, you can be satisfied with those and not impeach the witness.





Thursday, September 1, 2022

New Book on Pretrial Advocacy: Shouting from the Roof Tops

 


Proud that Aspen Publishing will soon be launching Pretrial Advocacy: Planning, Analysis and Strategy 6th Edition which I co-authored with Marilyn Berger and John Mitchell.  The above image shows what the cover will look like. New to this edition are the following:

  • Comprehensive organizing system for pretrial and trial
  • New material on preparing a witness for trial
  • Updated coverage of electronically stored information (ESI) and e-discovery practice
  • Advancements in the use of technology to create persuasive visuals for litigation
  • COVID impact on pretrial practice with respect to 
    • Conducting and defending depositions online
    • Mediation by videoconference
    • Greater us of written motions and responses

This book is one of the reasons, besides teaching at Seattle University Law School, that I haven't blogged for a while. Probably won't get much blogging done in the near future because we are working on the 5th edition of Trial Advocacy.