Tuesday, May 23, 2023

Brand New Editions of Pretrial and Trial Advocacy Books

 



Nothing makes us happier than the release of a newly published edition of an advocacy book, and Aspen Publishing has just launched the 5th edition of Trial Advocacy.

The three of us--Marilyn Berger, John Mitchell and I--have been at this for some time, and when we set out our goal for both Pretrial and Trial Advocacy books was to impart real-world approaches to litigation. We also wanted to provide not only a textbook but also, thanks to Marilyn’s expertise in filmmaking, demonstration videos (such as a trial demonstration video and videos showing how to take and defend depositions) and practical experiences through role-play assignments (such as performing trial activities from jury selection through closing argument).

Additional materials for performance are an inclusive aspect of the books: realistic case files containing documents, witness statements, photographs, and so forth. Teacher materials for both books include sample syllabuses and an extensive Teacher Manual for both Pretrial and Trial courses.

It’s great to see how the books have progressed, keeping pace with the best in litigation advocacy. Together we have worked to make sure the new editions are right up to date, for examples covering changes in response to COVID-19, electronically stored information (ESI), trial technology, and persuasive litigation visuals.  Most exciting is that new editions are now available on the popular Aspen Publishing CasebookConnect online platform.

Each book and companion materials can be used for a stand-alone Trial Advocacy or Pretrial Advocacy course, or they may be paired together and taught over, for instance, two semesters because they have a common nomenclature as well as the same analytical framework and civil and criminal casefiles.

If you are teaching trial advocacy or want a complete resource about trial advocacy, this book may be for you. The best way to decide on a textbook is to see for yourself. If you teach trial advocacy, to get obtain a complimentary review copy of Trial Advocacy click here  for a complimentary review copy of Pretrial Advocacy, click here

We truly hope that you like the new editions and will adopt one or both. If you have any questions, contact me at clarkrh@comcast.net.

Monday, May 22, 2023

More Advocacy Tools Offered

 


A most exciting addition to the new editions of Trial Advocacy 5th Ed. and Pretrial Advocacy 6th Ed. is that they are now available with the popular Aspen Publishing CasebookConnect online platform. CasebookConnect provides many supplemental materials. Let’s take a look at some of them in the Trial Advocacy CasebookConnect platform. 

First on the CasebookConnect Platform is the Professor or instructor materials that are only accessible to the instructor and will assist the instructor in teaching, and these materials include a Teacher’s Manual and Actor’s Guide that contains role-play instructions that the teacher can give to students who will play a roles in a performance  assignments, such as instructions to a student who is assigned to play the role of a witness during a cross-examination exercise. 

Following the Professor Materials is a Welcome Tab with resources welcoming students to CasebookConnect and its functions. Next is Cases and Assignments Tab where the assignments for student performances are located. By clicking on the Case Files Tab, student can access the full case files for both the criminal and civil cases that are utilized for the performance assignments.

Unique to the Pretrial and Trial Advocacy books are movies that show how to perform everything from taking and defending a deposition to closing argument. Under the Movies Tab in the Trial Advocacy book’s CasebookConnect, students can access the following: an animation of an aviation crash; visuals in a settlement documentary; a video on implicit bias; and both a full movie of a demonstration trial as well as movie clips demonstrating trial advocacy skills.

Under the next Additional Materials Tab are a variety of supplemental materials, such as juror questionnaires, trial brief, motions and more.









Tuesday, May 2, 2023

Remember the Jury: Cross-Examining Trump’s Claimed Rape Victim Jean Carroll

 

Donald Trump's lawyer, Joseph Tacopino was tasked with the cross-examination of 79-year old Jean Carroll who claims that Donald Trump raped her in a Manhattan department store in 1996. Tacopino attacked her credibility contending that she came forward in 2019 because she did not like his politics and wanted to sell copies of her book. That’s fair game.

A cross-examiner needs to beware of the different expectations of each of the audiences the cross-examiner is playing to during the cross-examination. The cross-examiner needs to be constantly aware of the jurors’ role in applying the law to the facts as they find and reach a verdict. The jurors’ job is to determine the truth, and the cross-examiner's demeanor and conduct should be designed to help the jurors meet their responsibilities.

While it may be satisfying to the cross-examiner Tacopino to challenge Carroll, the real test is what the jury thinks. Jurors may perceive his conduct in a negative light—as an abuse of her—particularly if they're not convinced that she deserved it. If she were patently lying, the situation shifts in favor of a rigorous cross-examination.

In the aftermath of his cross questioning her about why she didn’t act the way some might think a rape victim should—scream, call the police and so on, the jury will hear from two other women who say Trump raped them, Trump’s own words about how he groped women, and expert testimony that women don’t react as Tacopino suggests. And, this is not a he-said-she-said trial because it’s likely Trump won’t testify. The prosecutor’s closing probably will shred any argument by Tacopino to the effect that she wasn’t sexually assaulted.

Defense counsel Tacopino’s approach is a lesson is what not to do—he forgot his audience. For instance, Tacopino pressed Carroll about why she did not scream for seek help when Trump attacked her in the department store. Carroll's reaction was to respond to the suggestion that rape victims are supposed to act in a certain way was incorrect by saying that such thinking deters women from coming forward. She said, “I'm telling you, he raped me, whether I screamed or not.” News reports say that her voice rose and broke at this point. It was a step too far on cross.








Wednesday, April 26, 2023

CROSS-EXAMINATION: Poor Preparation Produces Picayune Points


Go Big: As we explain in Cross-Examination Handbook: Persuasion, Strategies, and Techniques, the primary purpose of cross-examination is to convince the jury to adopt your case theory and reject your opponents. This is the big picture. To do this, seek concessions that either build upon or protect your  own case theory or damage the other side’s. A secondary purpose is to impeach the witness’s credibility as unworthy of belief, thereby damaging your opponent’s case. Cross can be fashioned to produce one or both results. When a witness refuses to concede a fact that must be given because the evidence or common sense proves it to be the truth, the witness is impeached.  Of course, if you can gain such significant concessions from the witness that you have turned that witness to your own, remember the big picture—you can forgo impeachment. 

In Cross-Examination Handbook, we provide multiple illustrations of cross-examinations that revealed the big picture to the jury. U.S. Attorney Robert Stewart’s devastating cross of an alibi witness in a mega trial of 18 defendant’s known as the ‘Pizza Connection Case.” Bob Dekle’s cross of an expert in Ted Bundy’s last murder trial. U.S. Attorney Robert Stewart’s cross of Zacarias Moussaoui, who was prosecuted for his involvement in the 9/11 terrorist attack. Cross-Examination Handbook goes step by step through how to construct a concession-seeking cross that comports with the cross-examiner’s big objective—building the case or undermining the other side’s case.

Not Small: Nothing is worse than a small, nitpicky cross-examination. It not only bores the jury and makes no headway towards the examiner’s goals but also can turn the jurors against the cross-examiner. A cross should focus on major points and do it without exploring microscopic details. When is it common for cross-examinations to go small? Counsel often will cross a witness on minor inconsistencies between what the witness testified to and a prior statement. Just because the rules of evidence allow for impeachment with a prior inconsistent statement, doesn’t mean it should be pursued. Good judgment is called for. Is it a significant or insignificant matter? 

Poor preparation produces picayune points. When an attorney has not thoroughly planned the cross and wings it, that lack of planning often results in that attorney walking through the direct again, picking around the edges. The end result is a cross that repeats the direct and does not promote the cross-examiner’s big picture, is not to the point and is uninteresting.








Tuesday, April 18, 2023

Cross-Examination Impeachment with Visuals

 

At Seattle University Law School I teach an online course entitled “Visual Litigation and Today’s Technology". Cross-examination visuals are featured because they can be extremely powerful weapons for cross-examination. They can be used to gain concessions supporting your case theory and undermining the other side’s case theory. 

The text for the course is my book Visual Litigation: Visual Communication Strategies and Today’s Technology, published by Full Court Press, the publishing arm of Fastcase. The text offers examples of how visuals were used on cross-examination in notable cases, such as Abraham Lincoln’s cross-examination with a Farmer’s Almanac or the prosecutor’s cross-examination of Richard Hauptmann in the Lindbergh kidnapping/murder case with a ransom note and Hauptmann’s diary.

Visuals can also be very effective for impeaching a witness. For examples, impeachment visuals can include: a prior inconsistent statement either in a document or in a visual, such as a video deposition; a prior conviction—judgment and sentence document; a visual that establishes that the witness did not have personal knowledge about that which the witness testified; a visual that proves that the witness’s testimony is improbable; a visual that reveals the witness’s bias or interest; and a statement in a learned treatise that conflicts with the witness’s testimony.

“Visual Litigation and Today’s Technology” is a 2-credit course. In this Visual Litigation and Today's Technology online course, students interested in litigation learn how to integrate technology into their trial visual presentations. Just as visuals and technology have become a centerpiece in modern life, they also are the centerpiece in trial. Judges and jurors expect lawyers to use visuals with today’s technology.

The course is taught in the context of mock civil and criminal cases, giving students simulated real-world experiences working with visuals and cutting-edge technology. This experiential course will allow students in role-play assignments to plan the cross-examination of witnesses with visuals. 

This course is comprehensive in its exploration of visual communication strategies and technology, including, among other topics: the ethical and legal boundaries to what visuals may be displayed in trial; evidentiary foundations for visuals (animations, demonstrations, laser scanner images and so on); visual advocacy in both a pretrial venue and a courtroom, from opening statement through closing argument; the creation of visuals; litigation software, such as Sanction, TrialPad, and SmartDraw; and meeting the trial judge's expectations of a trial lawyer's competency when employing technology.



Wednesday, April 12, 2023

KEEP UP THE PACE DURING CROSS-EXAMINATION


No matter what you might think of F. Lee Bailey, he was a renowned cross-examiner.  This F. Lee Bailey’s pointer on cross-examination to keep the cross-examination questions moving along at a quick clip so that the witness doesn’t have time to concoct answers, is an excellent tip. As he pointed 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. 






 

Thursday, April 6, 2023

Cross-Examination Common Error, a Rookie Mistake


 

It is probably the most common error, a rookie mistake - the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .” 

The error is grievous. It violates Irving Younger’s 7th commandment: “Don't allow the witness to repeat his direct testimony.” Younger’s commandment directs the cross-examiner  to focus on accomplishing the goals of cross-examination which are to gain concessions that either bolster the cross-examiner’s case theory or undermine the opposing party’s case theory. If the cross-examiner instead allows or causes the witness to repeat the direct examination which contains things favorable to the opposing party, the examiner is defeating the purposes of cross. Worse than that, the examiner is repeating the information which the jury has already heard and that repetition will make it stick in the jurors’ minds. 

The Cause

Why would a cross-examiner ever have the witness repeat their direct examination? Why is it such a common mistake? The usual cause is poor preparation. Rather than having a well planned cross-examination, the cross-examiner mistakenly believes that it is possible to conduct a successful unscripted cross. Counsel has been taking notes during the direct examination and works off them to conduct the cross-examination.  Consequently, the examiner is reacting to what the witness testified to on direct, and thus repeats the direct examination. And, the examiner often does so in the order in which opposing counsel questioned the witness. 

The Cure

The cure that will prevent the cross-examiner from repeating the direct is to remember the core idea of cross-examination: Cross-examination is the cross-examiner’s opportunity to testify. Rarely if ever should cross-examination be done on the fly. It must be scripted to be effective. The examiner should know what the witness will testify to and that the examination will produce the desired responses.

The Two Exceptions

There are two exceptions to the rule that the cross should never repeat the direct. First, in those situations where the witness on direct testifies to information damaging to the other side’s case (such as when the other side it trying to pull the sting that is anticipated to be brought out on cross) or helpful to the cross-examiner’s case, then naturally it may be covered on cross. Second, in the odd case where the witness has been coached and memorized their testimony, the cross-examiner may want the witness to repeat direct. An example happened during the famous Triangle Shirtwaist Factory Fire trial when defense counsel’s cross revealed that a witness had been coached to give a memorized story by having the witness repeatedly tell her story in identical words during cross.




Sunday, April 2, 2023

CROSS-EXAMINATION OF THE WELL-PREPARED TOUGH WITNESS

 Even when you are equipped with the skills and strategies covered in Cross-Examination Handbook, they will not be enough to do damage to the credibility of a tough witness. A tough witness is one who is armed with the truth and has been thoroughly prepared to testify at trial. The best that you can accomplish with a tough witness is to elicit concessions that either support your case theory or undermine the other side’s case theory. 


What will a veteran, skilled trial lawyer have done to prepare a witness? It pays to know what you are up against when you plan to cross-examine that tough witness who has been well prepared for your cross.

What is entailed in the thorough preparation of a witness? The following is an indispensable checklist along with notes for thorough and effective witness preparation that you can use when you prepare your witness. And, when you come up against the tough witness, you know that able opposing counsel has relied upon a similar checklist. 

Preparation for the courthouse and courtroom:

Courthouse – where is it? Note: It is not unheard of that a witness will go to the wrong courthouse or courtroom. Tell your witness not only where the courthouse is but also where the courtroom is located.
Courtroom Layout. Notes: Much of your witness preparation is designed to familiarize the witness with everything. Most people have a fear of the unknown, and this preparation can alleviate some of that fear. Either show the witness a diagram of the courtroom or take the witness to the courtroom. If you have a child witness, definitely take the child to the courtroom, have the child sit in the witness chair and otherwise learn about the courtroom. Tell the witness who the courtroom players are and where they will be positioned in the courtroom, such as where the clerk, bailiff and court reporter are situated (except for the defendant in a criminal case which could result in a mistrial).
Don’ts: Notes: Tell the witness not to discuss case in or around the courthouse. because jurors may be on the street around the courthouse or in the halls or on the elevator. Instruct the witness to not enter the courtroom until summoned because witnesses are excluded. This does not apply to the client(s) and to the detective in a criminal case.

Preparation on the witness’s role and substance:

Witness’s Role. Notes: Tell your witness to tell the truth. If it hurts, tell the truth. Tell your witness that the only instruction that you have given them regarding what to say is—tell  the truth. Ask the witness, “What damaging information is out there?” You need to know because only if you know what it is, can you deal with it.
Review Prior Witness Statements. Notes: Have the witness review all prior witness statements that the witness has given. Tell the witness before the witness goes over the statement that the witness should not feel wed to what is in the statement. If there is something erroneous, the witness should let you know.
Cover the Witness’s Story. Notes: Go over the witness’s story in detail and probe for any weaknesses. If there is a weakness, have the witness explain. Witnesses are commonly not good at estimating things like time and distance. Go over this. For example, if the witness says that the two individuals were five feet apart, have the witness show you how far they were apart using objects in the room.
Practice Direct Examination. Notes: Walk through it. Practice with exhibits and demonstrations
Practice Cross-Examination. Notes: Explain to the witness that you are going to step into opposing counsel’s shoes and conduct a cross-examination (you may have another colleague do it). Ask tough questions that you expect from the other side. Tell your witness not to worry about cross-examination because the witness is telling the truth.

Preparing the Witness on How to Testify:

MRPC 3.4(b) prohibits coaching to testify falsify. Notes: However, you can help the witness be a good communicator. Help the witness be Confident, Clear and Credible. 
1.  Have a Good Appearance. Notes: Tell the witness to dress appropriately for court. When sitting in the witness chair, the witness should have good posture—sit up straight.  Speak clearly, and here you can explain the role of the court reporter and the need to speak clearly and not to rapidly. The witness should avoid distracting habits, such as chewing gum or fiddling with a pen.
2.  Courtroom Rules. Notes: Tell the witness that if there is an objection, stop talking and listen for directions regarding what is to be done next. Tell the witness that if they can’t remember something, say so. And, explain how you may seek to refresh recollection if the witness can’t recall and the procedure for refreshing recollection.
3.  Communication on Direct. Notes: Tell your witness that only the jury counts, and that the witness should talk to them. If court procedures permit, explain that you will stand at the end of the jury box so that the witness will be looking down the jury box towards you. Tell the witness that this courtroom positioning is intended to remind the witness both to speak up so the furthest away jurors can hear and to look the jurors in the eyes and talk to them as though they were having coffee together. Tell the witness that the jurors have no axe to grind with the witness and they are just trying to learn the truth, which the witness will deliver.
4.  Communication on Cross. Notes: Discuss keeping composure on cross. You can explain that the witness should never get cute or argue with the questioner. To assist the witness with that endeavor, you can explain that while the witness will not be able to address the jury after testifying, counsel may and in doing so, counsel can comment on the witness’s lack of composure and how the witness’s demeanor showed the witness was not credible. Explain that contrary to direct examination when the witness should look at the jurors, during cross, the witness should look directly at counsel. Instruct the witness listen carefully to the question that is asked and answer it directly. Don’t volunteer information. 









Tuesday, March 21, 2023

HUMOROUS CROSS-EXAMINATION: Beware of Open-Ended Questions

 



Don't shoot yourself in the foot. Use leading questions on cross. Open-ended cross-examination questions can have repercussions.

The following is an actual courtroom cross-examination exchange between a defense attorney and a farmer with a bodily injury claim. It came from a Houston, Texas insurance agent.

Q: "At the scene of the accident, did you tell the constable you had never felt better in your life?"

A: "That's right."

Q: "Well, then, how is it that you are now claiming you were seriously injured when my client's auto hit your wagon?"

A: "When the constable arrived, he went over to my horse, who had a broken leg, and shot him. Then he went over to Rover, my dog, who was all banged up, and shot him. When he asked me how I felt, I just thought under the circumstances, it was a wise choice of words to say I've never felt better in my life."







Thursday, March 16, 2023

Learning by Watching Podcast

 


Recently, Marilyn Berger & I were on the Aspen Leading Edge podcast with Dean Patty Roberts to discuss the future of law schools and our new Pretrial and Trial Advocacy books. Click here to listen to the broadcast now.










Tuesday, March 7, 2023

New Book Launch: Trial Advocacy: Planning, Analysis, and Strategy 5th Edition

 




The new edition of Trial Advocacy has just been launched and Aspen Publishing's announcement is as follows:


Trial Advocacy, Fifth Edition equips trial lawyers, students, and professors with a complete set of tools for practicing the art of trial advocacy, including explicit instructions on planning, strategy, and performance for each phase of a trial from jury selection to closing argument with illustrations of both criminal and civil trial activity.  An accompanying movie features trial demonstrations by veteran trial lawyers; a regularly updated website provides articles, supplemental materials, downloads, and links to additional resources.

 
New to the Fifth Edition:
Case law and rules of procedure, evidence, and professional responsibility are updated to reflect the latest changes. 
The COVID pandemic has had a big impact on litigation practice. The Fifth Edition tracks these developments in trial advocacy today: 
o Jury selection procedures and strategies for online trials. 
o Preparing witnesses to testify online. 
o Direct and cross-examination of witnesses online. 
o Introducing and displaying exhibits online.
o Advancements in technology for creating persuasive visuals in the courtroom or online.
This new edition is now available in print and on the popular Casebook Connect online platform. 
This new edition keeps pace with the advancements in technology, particularly electronic visuals. 
Foundations for testimony have been added, giving the new edition comprehensive coverage of evidentiary foundations for admissibility along with illustrative transcripts of predicate questions. 
Chapter 15 “The Cases and Assignments” containing 79 trial advocacy performance assignments is added to the book. 
Teaching Materials: 
Checklists for each chapter for easy teachability 
Both civil and criminal case files for the performance assignments 
Actors’ Guide for the performance exercises 
Teacher’s Manual with course syllabus 
Videos of jury trial demonstrations 
Companion website: CasebookConnect.com 

To learn more about this title or view the detailed table of contents, 
please visit our website.

To access teaching materials for this title once they are available, you will need a validated professor account on AspenPublishing.com. If you do not yet have a validated professor account, you may register at AspenPublishing.com/my-account/register. Account validation may take 1-2 business days. Once validated, you may log into your account using your own personal login, go to the product page for this title or any Aspen Publishing title, and scroll down to access the Professor Resources once they have been made available on the site.






Wednesday, March 1, 2023

NEW BOOK: Eradicating American "Prosecutor Misconduct"

 


Just published is Eradicating American "Prosecutor Misconduct”: A Handbook for Prosecutors, Criminal Defense Attorneys and Others Interested in Criminal Justice. It covers all phases of prosecution including cross-examination. This short yet comprehensive Handbook is designed for both prosecutors and defense counsel alike. Its modest goal is to eradicate what is called “prosecutor misconduct”. While this Handbook may serve as a guidebook for prosecutors, it also arms defense counsel with information that can be used to ensure that their clients receive a fair trial. 

An example of how the Handbook simultaneously guides prosecutors and arms defense counsel is that it spells out what a prosecutor is prohibited by law and ethical rules from saying in trial. By identifying what a prosecutor is not permitted to say in trial, it not only tells prosecutors what not to do but also provides defense counsel with grounds and legal authority for either an objection, a motion for mistrial, or an appeal if the trial judge overrules the objection or denies the motion. 

This Handbook is also intended for anyone who wants to understand the real roles and functions of the American prosecutor.  There is a wide-spread public misunderstanding (even among lawyers, law professors, and law students) of the prosecutor’s roles and functions.  These misconceptions are to a significant degree caused by movies, television shows, and books that cast prosecutors as antagonists in their narratives. 

Eradicating American "Prosecutor Misconduct" traces the unique character of the American prosecutor from its origins to today because only by understanding that history can the roles and functions of a modern prosecutor be fully appreciated.  

This Handbook is an outgrowth of Continuing Legal Education presentations on prosecutor professionalism that I delivered across the nation. It offers engaging and educational examples of prosecutor error along with the words from a cross-section of state and federal appellate courts describing both what and why certain prosecutorial conduct is prohibited. In sum, it offers learn-by-example lessons of what a prosecutor should not do in pretrial and trial. 



Wednesday, February 22, 2023

BOOK LAUNCH: TRIAL ADVOCACY GOES TO THE MOVIES


What do My Cousin Vinny and Atticus Finch have in common? A lot more than you might think.  While Atticus Finch’s closing argument in To Kill a Mockingbird continues to inspire viewers to attend law school, the cross-examinations in My Cousin Vinny—while hilariously funny—offers equally compelling examples of excellent lawyering. With the aid of movies, this book Trial Advocacy Goes to the Movies: Go to the Movies for Lessons in Trial Strategies, Techniques and Skills explores advocacy from pretrial preparation through closing argument.

Why go to the movies to learn trial advocacy strategies, techniques, and skills? First, trial work is theater; movies show trial advocates how to effectively deliver a message to an audience. Second, movies illustrate successful advocacy principles and techniques. Third, movies are a visual medium, showing how to impart to a jury the trial lawyer’s message with visuals. Fourth, movie clips can be used to illustrate ethical and legal boundaries that trial lawyers should not cross. Fifth, some movies are based on actual cases and show how to be successful in trial with a real-life examples. Sixth and lastly, movies are entertaining and that helps the viewer learn winning trial techniques.  

This volume, like a play and most movies, has three acts. Act 1 focuses on the screen play and how to incorporate the elements of a five-star screenplay into your trial story. Act 2 is devoted to casting, rehearsal—how to prepare the actors in the movie—the witnesses. Act 3 deals with the performances—how to perform like a star at each stage of the trial. 

Your role changes as you move from Act to Act. For Act 1—Screen Writer, you are the screen writer and cinematographer. For Act 2—Director, you are the director who casts the parts, rehearses the actors and so on, and you work for the movie studio. And, for Act 3—Actor, you are the principal actor who performs during each phase of the trial. 

Because this is an e-book, you can watch movie clips of trial advocacy (yes, My Cousin Vinny is included) – each clip is just one click away.

This book is an outgrowth of a presentation titled by the same name—"Advocacy Goes to the Movies”—that I have had the pleasure of delivering at continuing legal education seminars across the country. Yes, the lawyers got CLE credit for attending. The presentation usually lasted a half-day. “Advocacy Goes to the Movies” was always a lecture that I enjoyed giving and was received with smiles and engagement by the audience. Hope you enjoy it too.









 

Wednesday, February 15, 2023

5 Tips on Cross-Examining a Witness

 


Here, we concentrate on impeaching the adverse witness. There are 5 a tips here on how to impeach the adverse witness.

Tip 1. Employ the SEVEN TECHNIQUES FOR A SUCCESSFUL IMPEACHMENT. 

The techniques you use to accomplish the impeachment are critical. These are seven techniques for a successful impeachment of a witness: 

1. Assess the witness and adjust your approach to fit the witness;

2. Lock the witness into the testimony before you impeach;

3. Close all the exits to prevent the witness from escaping;

4. Establish a motive for the witness to prevaricate;

5. Paint a picture for the jury;

6. Surprise the witness; and

7. Use visuals or tangible evidence if possible.

At the top of the list is the technique of assessing the witness and adjusting your approach to fit that witness. David Paul Jones, a British barrister is quoted in  Francis L. Wellman’s book The Art of Cross-Examination, as follows: “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 dignity.” 


Watch the following cross-examination in A Few Good Men with the seven techniques in mind. Following the movie clip is the list of seven techniques with notes from the cross in the movie. 


Here is a portion of the list of seven with notes:

1. Assess the witness and adjust your approach – the cross-examiner shifts to being rough with the witness when the witness becomes a ruffian;

2. Lock the witness into the testimony before you impeach—the cross-examiner locks the witness and is able to preface with a question with “a moment ago you said”;

3. Close all the exits to prevent the witness from escaping—the cross-examiner closed this exit with “any chance he ignored the order”;

4. Establish a motive for the witness to prevaricate—to conceal hiding the fact that he ordered the code red; and

5. Paint a picture for the jury—brush stroke by brush stroke of what happened; and

6. Surprise the witness—with the fact that he was prepared to call witnesses to contradict the witness. 

Tip 2. Know the WRECKING CREWS IMPEACHMENT AREAS that may be used to demolish an adverse witness.

When the CONTENT of your cross-examination is the IMPEACHMENT of the witness rather than gathering concessions, the techniques you use a wrecking crew. This is a list of the veritable impeachment wrecking crew:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

For an effective impeachment with any one of these wrecking crews, you use the techniques described in Step 1 above. Again, the seven techniques are:

1. Assess the witness and adjust your approach;

2. Lock the witness into the testimony before you impeach;

3. Close all the exits to prevent the witness from escaping;

4. Establish a motive for the witness to prevaricate;

5. Paint a picture for the jury;

6. Surprise the witness; and

7. Use visuals or tangible evidence if possible.

For each wrecking-crew impeachment, you can observe how these techniques were applied

Tip 3. Cross-examine the witness to reveal the UNRELIABILITY OF THE WITNESS’S OBSERVATION.

Let’s begin with UNRELIABILITY OF THE OBSERVATION. Here, the cross-examination is designed to show the witness LACKED PERSONAL KNOWLEDGE. For most of these demolitions, there is a corresponding rule of evidence. Here the rule is Rule 602, which reads in part:    “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. . .” Naturally, My Cousin Vinny provides a nice illustration of this demolition. 


 Let’s watch.


Look back at the list of seven techniques for impeachment. Vinny assessed the witness, determined the witness was honest but mistaken and adjusted his approach to the witness. Vinny painted a picture of how the witness’s vision was obscured. And Vinny used photographs to impeach.

Tip 4. Cross-examine the witness to reveal a FAULTY REPORT by the witness

Now, we move on to the second impeachment wrecking crew—The Faulty Report. The concept here is that the report given by the witness is improbable. Cross-examination to show the witness’s account is improbable is supported by Evidence Rule 401. Test for Relevant evidence, which states, “Evidence is relevant if:

(a) it has any tendency to make the existence of any fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action. 

All relevant evidence is admissible, except . . .” 

There are three techniques you can employ to show the report is improbable:

1. Reduction to the Absurd Technique

2. Common Sense Technique

3. Contradictory Conduct Technique

Reduction to the Absurd Technique

The 1925 Scopes trial provides an excellent illustration of the Reduction to the Absurd Technique. Here is a brief summary of the facts of the case and the lawyers involved.

  The trial took place in Dayton, Tennessee

  John Scopes was accused of teaching evolution in violation of state statute

  William Jennings Bryan – former candidate for President and head of the fundamentalist   movement becomes co-counsel for the prosecution

  Clarence Darrow signs on as co-counsel for defense

The trial drew such a crowd that they thought the courtroom floor would collapse and they moved the players outside as pictured below.


 A book “Inherit the Wind” was written about the trial and it was later made into a movie by the same name. The cross-examination in the movie is based on the trial transcript.

 


Watch as Darrow cross-examines Bryan.


The jury deliberated 9 minutes and found Scopes guilty. The court levied an hundred dollar fine on Scopes.  Bryan died five days later.

Common Sense Technique

The commonsensical approach to impeachment is to force the witness to acknowledge that your position only makes common sense. In the Case Against 8—a lawsuit brought to overturn a California law that marriage must be between a man and a woman, attorney for the plaintiff David Boies cross-examined the other sides expert and forced her to admit what only made common sense as follows: 

Boies – Q: Do you believe that children are advantaged by increasing the durability of the relationship of the couple raising them?

Young – A: Yes

Q: And you believe allowing gay couples to marry will increase the durability of the gay couples relationships?

A: Okay, I’d say yes.

Q: And increasing the durability of these relationships is beneficial to the children they’re raising, correct?

A: On that one factor, yes.

Common Sense Technique

The OJ Simpson trial provides a good example of how to employ this contradiction technique. A portion of F. Lee Bailey’s cross-examination of the lead detective Mark Furhman went as follows:

Bailey: Q:  Do you use the word “nigger” in describing people?

Ms. Clark:  Same objection.

The Court:  Presently?

Bailey:  Yes.

The Court:  Overruled.

Furhman: A:  No, Sir.

Bailey:  Q:  Have you used that word in the past ten years?

A:  Not that I recall.  No.

Q:  You mean if you called someone a nigger you have forgotten it?

A:  I’m not sure I can answer the question the way you phrased it, Sir.

Q: You have difficulty understanding the question?

A:  Yes.

Q:  I will rephrase it.  I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a nigger.  Is it possible that you have forgotten that act on your part?

A:  No, it is not possible. 

Q:  Are you therefore saying that you have not used that word in the past ten years, detective Fuhrman?

A:  Yes, that is what I’m saying.

Q:  And you say under oath that you have not addressed any black person as a nigger or spoken about black people as niggers in the past ten years, detective Furhman?

A:  That’s what I’m saying, Sir.

Mark Furhman

The defense called witnesses to say he used the word, and the defense produced an audio tape in which he said the word. Furhman was later convicted of perjury and sentenced to three years probation – now lives in Idaho.

A limitation on how you may contradict a witness is that you may not pit one witness against another—it’s called “pitting”. Here is an example of pitting from Sullivan v. State, 751 So. 2d 128 (Fla. 2nd Dist. Ct of Appeals 2000):

Q.... You never told those detectives that you were a lookout in this case, huh?

A. No. I didn’t.

Q. So you heard them both get up there and say that you told them that, right?

A. Yes, I did.

Q. And, now, I guess, you're telling this jury that these two detectives came in here today and got up here and lied?

[OBJECTION SUSTAINED]

Q. You heard those two detectives get up there and say that you told them you were a lookout. Is that true?

A. Right

Q. Are you saying they lied?

[DEFENSE COUNSEL]: Objection, Judge. This is improper.

[THE STATE]: I'm sorry, Judge. Either one person is telling the truth.

[OBJECTION SUSTAINED]

In Sullivan v. State, the court held as follows: “In Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993), the supreme court held that questions directed to one witness concerning whether another witness lied on the stand are improper for two reasons: first, because witness credibility is a jury question; and second, because the question itself may lead the jury to believe that the witness being questioned is lying.”  

Interestingly, pitting is permitted elsewhere in the world. An article titled Examining Witnesses, in the ABA Journal noted, “The rules limit your ability to ask the witness on the stand to explain or comment on the testimony of another witness. This is a marked contrast to other legal systems such as the British and South African, in which putting others’ versions to the witness is often done.” ABA Litigation Section 155-56 (1972).

Tip 5. Cross-examine the witness to reveal the witness is an Unbelievable Reporter

The Witness made a Prior Inconsistent Statement

One way to show that the witness is unbelievable is to show that the witness made a prior inconsistent statement. Evidence rule Rule 613—Prior Statements of a Witnesses governs the methodology for cross-examining a witness regarding a prior inconsistent statement and the use of extrinsic evidence to contradict the witness, as follows:

 (a) Examining Witness Concerning Prior Statement. 

In the examination of a witness concerning a prior statement made by the witness, whether written or not, the court may require that the statement be shown or its contents disclosed to the witness at that time, and on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. 

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). 

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). 

There are NINE STEPS TO EFFECTIVE IMPEACHMENT WITH A PRIOR INCONSISTENT STATEMENT

   1. Avoid nitpicking – nothing worse than a nitpicking cross  

  2. Recognize the inconsistency – listen carefully to the witness

  3. Retrieve the prior statement – be prepared

  4. Repeat the testimony – pound home the current testimony

  5. Reinforce the truthful statement – show the prior statement was more likely to be truthful (e.g., made closer in time to the event and under circumstance making it likely the witness was truthful

  6. Reference the prior statement

  7. Resonate with the jury – pause, then slowly read the statement 

  8. Read and/or display the statement

  9. Refute the witness’ denial – use extrinsic evidence.

See Chapter 7 in Cross-Examination Handbook for a more extensive discussion of how to impeach with a prior inconsistent statement.


CLICK HERE FOR THE CROSS BOOK

Now, watch this clip from the great Agatha Christie story Witness for the Prosecution to see how to impeach with a prior inconsistent statement – particularly how to Resonate with the Jury.


Hope you enjoyed that.

The Witness has a Prior Conviction

Evidence Rule 609 governs impeachment with a prior conviction. Rule 609 states: 

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Above is an actual chart showing the government’s witnesses’ prior convictions. Pistol whipping a priest is pretty serious.

The Witness has been Untruthful in the Past

Cross-examination can impeach a witness by showing the witness’s prior untruthfulness. Here Evidence Rule 608 comes into play. Rule 608 provides:

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Third, if a character witness is called to testify, cross-examination to show the witness’s untruthfulness may be permitted under the evidence rules. Evidence Rule 608 (above) indicates when that impeachment may be pursued. Rule 404(a) also provides the grounds for such impeachment, as follows: 

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; . . .






Wednesday, February 8, 2023

Legal and Ethical Boundaries of Cross-Examination

 



Watch this clip from Anatomy of a Murder to see an attorney crossing the legal boundary of a proper cross-examination. Note that one of America’s war heroes and favorite actors is playing dirty.


Model Rule of Professional Conduct 3.04 : A lawyer shall not: . . .
 
(c) except as stated in paragraph (d), in representing a client before a tribunal: . . .
 
(2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness;

It is improper to assert a fact in a question that the lawyer does not have a good faith basis to believe will be supported by the evidence. In State v. Lowe, 843 N.E.2d 1243, 1246, 164 Ohio App. 3d 726, 729 (2005) was faced with a situation where opposing counsel failed to object to such a question and the Ohio Appellate Court held as follows: 

“It is improper to attempt to prove a case by insinuation or innuendo, rather than with evidence. Questions that are not based on fact or for which there is no good-faith basis are improper. 
“By its nature, cross-examination often involves a tentative and probing approach to testimony given on direct examination. State v. Gillard (1988), 40 Ohio St. 3d 226, 231. Therefore, the examiner need not lay an evidentiary foundation before posing questions upon cross-examination. It is sufficient if there is a good-faith basis to question the witness on the subject. 
“Where the good-faith basis for a question is not challenged at the trial level, it is presumed that such a basis exists. ‘Since the prosecutor’s good-faith basis for asking these questions was never challenged, we presume she had one.’”

The lessons are clear. First, don’t ask a cross-examination question that you don’t have a good faith basis to believe will be supported by the evidence. Second, if opposing counsel asks such a question, object.


Tuesday, January 31, 2023

Visual Cross-Examination

 


What kind of learner are you? Over 40 percent of the jury pool nationally belongs to the millennial generation, composed of people who were born after 1982 who grew up with computers in their homes, schools, and businesses.  The millennials are accustomed to information being delivered visually and in short order. 

Your jurors are visual learners and that’s why you want to utilize visuals in cross-examination. Visuals also cause jurors to retain information. If it is only oral—testimony and attorney talk, jurors will retain only 10%. If it is oral and visual, they will retain 65%

In the George Zimmerman trial, prosecutor John Guy used a dummy on cross examination of defense expert to illustrate that if 17-year old Trevon Martin were straddling Zimmerman, Zimmerman would have had trouble getting his handgun from his holster. 








Monday, January 23, 2023

NEW BOOK: TRIAL ADVOCACY GOES TO THE MOVIES: Go to the Movies for Lessons in Trial Strategies, Techniques and Skills

 

What do My Cousin Vinny and Atticus Finch have in common? A lot more than you might think.  While Atticus Finch’s closing argument in To Kill a Mockingbird continues to inspire viewers to attend law school, the cross-examinations in My Cousin Vinny—while hilariously funny—offers equally compelling examples of excellent lawyering. With the aid of movies, this book Trial Advocacy Goes to the Movies explores advocacy from pretrial preparation through closing argument.

Why go to the movies to learn trial advocacy strategies, techniques, and skills? First, trial work is theater; movies show trial advocates how to effectively deliver a message to an audience. Second, movies illustrate successful advocacy principles and techniques. Third, movies are a visual medium, showing how to impart to a jury the trial lawyer’s message with visuals. Fourth, movie clips can be used to illustrate ethical and legal boundaries that trial lawyers should not cross. Fifth, some movies are based on actual cases and show how to be successful in trial with a real-life examples. Sixth and lastly, movies are entertaining and that helps the viewer learn winning trial techniques.  

This volume, like a play and most movies, has three acts. Act 1 focuses on the screen play and how to incorporate the elements of a five-star screenplay into your trial story. Act 2 is devoted to casting, rehearsal—how to prepare the actors in the movie—the witnesses. Act 3 deals with the performances—how to perform like a star at each stage of the trial. 

Your role changes as you move from Act to Act. For Act 1—Screen Writer, you are the screen writer and cinematographer. For Act 2—Director, you are the director who casts the parts, rehearses the actors and so on, and you work for the movie studio. And, for Act 3—Actor, you are the principal actor who performs during each phase of the trial. A good portion of this short book is devoted to cross-examinations in the movies because they are usually the most dramatic scenes.

Because this is an e-book, you can watch movie clips of trial advocacy (yes, My Cousin Vinny is included) – each clip is just one click away.

This book is an outgrowth of a presentation titled by the same name—Advocacy Goes to the Movies—that I have had the pleasure of delivering at continuing legal education seminars across the country. Yes, the lawyers got CLE credit for attending. The presentation usually lasted a half-day.  Advocacy Goes to the Movies was always a lecture that I enjoyed giving and was received with smiles and engagement by the audience. Hope you enjoy it too.

Click here to purchase Trial Advocacy Goes to the Movies.