Coming in the Near Future: New Edition of Evidence Book

 Good news today. Aspen Publishing wants to do a new edition of our Evidence book.

Working and Want a Law Degree--Flex JD Program

 

Beginning this Spring Seattle University Law School will offer my Comprehensive Pretrial Advocacy Flex JD course. It is a 4-credit course. Flex JD courses are designed for students who are working. They are hybrids—for example, my Pretrial Advocacy course involves one synchronous online Zoom session per week running from 6 to 7:30 p.m. and two in-person weekends at the law school. Students in the Flex JD program can graduate in four, rather than three, years.

The curriculum of my course while organized to fit this pattern will cover the same material and experiences that an in-person at the law school course covers. One big difference is that students will be interacting with and submitting work on a very robust Canvas web page. 

The text for the course is my Pretrial Advocacy: Planning, Analysis and Strategy 6th edition, which is being published by Aspen Publishing. 

Cross-Examining Donald Trump

 

Trump is currently in trial in the Trump civil fraud trial. He was called to the stand by the Attorney General’s office in the civil fraud trial. In a criminal trial, the government cannot call the defendant to testify because the defendant has a 5th Amendment right. In this civil case, however, the government could and did call the defendant Trump to testify, and defendant Trump could have  exercised his 5th Amendment right. However, in the civil case, the factfinder (in this bench trial, Judge Engoron) could draw an adverse inference if defendant Trump were to take the 5th. For example, if Trump refused to answer a question posing that he inflated the price of a piece of real estate, the judge could infer that he did inflate the price.

Why did the AG call Trump as a witness? It was because Trump had to admit facts supporting the government’s case, such as heading his business and ownership of his real estate, and so on. 

That brings us to the question—why didn’t the defense cross-examine Trump? First off, this is not the usual cross-examination. The usual cross involves counsel examining the other side's witness, using cross to elicit concessions and/or impeach the witness. 

Here, however, defense counsel is questioning the defendant, and ordinarily, the defense attorney would ask the defendant open-ended questions allowing the defendant to lay out information favorable to the defense case. This assumes that the defendant would benefit the defense case with the helpful testimony. Also, this assumes that the defendant is a normal person and a person who has at least a scintilla of information that would benefit the defense.

In this case, however, the defense, when defense counsel was offered the opportunity to examine Trump and gather beneficial evidence, defense counsel responded, “No questions.” Normally, defense counsel says “No questions” when the witness has not hurt the defense case and cannot benefit by asking any questions. 

Here, on the other hand, the defense risked that defendant Trump would further build the government’s case. Watch this interview with former US Attorney Chuck Rosenberg.

Book Review: "Companion to Enduring Cross-Examination Texts"

 

I wanted to share Munish Bharti's kind review of Cross-Examination Handbook. It reads as follows:

5.0 out of 5 stars Essential Companion to Enduring Cross-examination Texts

Cross-examination has been described as “the greatest legal engine ever invented for the discovery of truth.” JOHN H. WIGMORE, 5 WIGMORE, EVIDENCE §1367, at 32 (Chadbourn rev. 1974). Yet, according to authors Clark, Dekle, Sr., and Bailey, “[t]oo few trial lawyers are good at cross-examination.”

Readers rejoice: this book provides the building blocks for preparing and conducting winning cross-examinations. This book explains the concession-seeking cross, basic impeachment concepts, and how to use visuals and exercise control over the recalcitrant, unruly witness.

This book is an essential companion to:

(1) LARRY POZNER AND ROGER J. DODD, CROSS-EXAMINATION: SCIENCE AND TECHNIQUES (LexisNexis 2d ed. 2004);

(2) FRANCIS L. WELLMAN, THE ART OF CROSS-EXAMINATION (Macmillan Co. 4th ed. 1936); and

(3) JAMES H. MCCOMAS, DYNAMIC CROSS-EXAMINATION: A WHOLE NEW WAY TO CREATE OPPORTUNITIES TO WIN (Trial Guides 2011).

Questions about the Books

 

Critical Cross-Examination Checklists

 

Checklists are critical to cross-examination. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for cross-examiners as well. At the end of almost every chapter in Cross-Examination Handbook: Persuasion, Strategies and Techniques 2nd Edition is a checklist of matters that are essential to effective cross-examination. The following is an example of a checklist that follows the chapter in Cross-Examination Handbook that focuses on exposing the false or exaggerated nature of what the witness reports on the stand. 

Checklist: Impeachment Cross: 

    Improbability 

Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401402. 


Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 


The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 


The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 


The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 


Prior Inconsistent Statements 


Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements. 

• If the witness admits the prior statement, extrinsic evidence of the statement 
may be excluded as cumulative under Rule 403. 


• If the witness does not unequivocally admit the prior statement, extrinsic evi
dence of the statement is admissible. 


• The witness must be given an opportunity to deny or explain the statement. 


• The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 


Avoid impeaching with minor inconsistencies, except: 


1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 


2. When necessary to force an evasive witness to yield concessions. 


Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would 
otherwise be inadmissible evidence. 


Eight essential techniques for impeachment with a prior inconsistent statement are: 

1. Recognize the inconsistency; 


2. Retrieve the prior statement; 


3. Repeat the testimony; 


4. Reinforce the truthful statement with where said, when said, who heard, what 
said, and whether said;


5. Reference the prior statement; 


6. Resonate with the jury; 


7. Read or display; and 


8. Refute the witness’s denial. 


        Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition.
 Apply the eight essential techniques when impeaching with a deposition.


         With video deposition clips the impeachment has a greater impact on the jury 
than with just the transcript. 


Impeach the witness’s trial testimony by revealing that the witness previously 
failed to act or relate the same information when it would have been human nature to do so. 


Contradiction 


Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 


Having a witness comment on the credibility of another witness—pitting—is improper. 


9 Golden Rules of Cross-Examination

 

The 9 golden rules of cross is advice from David Paul Jones’s Rules of Cross-Examination, a British barrister who wrote them over a century and a half ago. They still hold true today. The 9 are as follows:

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

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

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

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

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

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

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

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

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

New Book Launched with Lawyer Jokes

 

I’ve spent my adult life as a lawyer and law professor, and I believe that practicing law is engaging in a noble profession. Nonetheless, I do enjoy and laugh at lawyer jokes, humorous stories about lawyers’ faux pas, law puns, and other such witticisms, and I want to pass them on to you. 

Humor can be an invaluable way to break the ice when giving a presentation. Amusing anecdotes can enliven any speech. Lawyer gaffes can serve as illustrations of mistakes to avoid when practicing law, such as suffering the backfire from asking a “Why” question on cross-examination. Lawyer jokes also show the human side of lawyers. 

Consequently, I have with diligence and arduous, exhaustive research compiled this brand-new authoritative LAWYER HUMOR HANDBOOK: The Complete Tome of Lawyer Jokes, Stories, Amusing Transcripts, Puns, and Witticisms. 

The Handbook is chockfull of witticisms, including: 210 humorous lawyer stories, 62 courtroom transcripts with lawyer gaffes, 83 question and answer lawyer jokes, 19 law school amusements, 38 punchy puns and word-play bits, 2 Legal writing funny pieces, and 26 hilarious one-liners. 

I hope that you get some chuckles from this Handbook and pass the jests you like on to others (the Handbook is a great gift for a lawyer) unless they can’t take a lawyer joke.

Five Star Review: Eradicating American "Prosecutor Misconduct"

 

See more reviews and get your copy ---- Click Here   

The Movies Teach Cross-Examination and More Trial Advocacy

 

For more reviews and more about the book click on the following: Trial Advocacy Goes to the Movies: Go to the Movies for Lessons in Trial Strategies, Techniques and Skills  

HOW TO PREPARE A WITNESS FOR CROSS-EXAMINATION

 

Even when opposing counsel is equipped with the skills and strategies covered in Cross-Examination Handbook, they will not have 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. 

What is entailed in the thorough preparation of a witness for cross-examination? 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 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. 

TRIAL WORK AXIOM: EXAMINE EXHIBITS BEFORE THEY GO TO THE JURY OR OUCH!

 

An irrefutable principle is that a trial lawyer should carefully examine every exhibit that may go to the jury room. This bears repeating because of the consequences. Adhere to this rule or live to regret it. 

One cautionary tale I use to drive home this point in my advocacy classes involves the trial of a criminal sexual conduct, first degree burglary and kidnapping case involving a 72-year-old woman victim. An Orangeburg, South Carolina trial judge granted a mistrial ruling that the jury was prejudiced by evidence not submitted at trial. Jurors found a confession in the back pocket of the pants (defendant) Bradley was wearing when police arrested him. The pants had been admitted into evidence, but the document had not. 

New Lawyer Jokes Book in Progress

 

I'm currently working on a new book on Lawyer Humor and this is a piece of it.

Law schools should focus on producing professional communicators—lawyers—who are effective writers. However, Bryan A. Garner in his column for the ABA Journal titled, “Why Lawyers Can’t Write” with the subtitle: “Science has something to do with it, and law schools are partly to blame.” stated:

While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments. (ABA Journal, March 2013, p. 24)

Garner was echoing the theme of Jim McElhaney, advocacy instructor and ABA Journal contributor for 25 years, who wrote this in a September 2012 ABA Journal article: 

Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity.

  So we lard our speech and writing with words and phrases of awkward obscurity and rarely have anything to do with legal precision but that unmistakably say, ‘This was written – or said – by a lawyer.’

Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to be effective communicators. 

One day in contract law class, the professor asked one of his better students, "Now if you were to give someone an orange, how would you go about it?"

The student replied, "I’d write a contract that says, ‘Here's an orange.’"

The professor was livid. "No! No! Think like a lawyer!"

The student then responded, "Okay, I'd write, ‘I hereby give and convey to you all and singular, my estate and interests, rights, claim, title, claim and advantages of and in, said orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages with full power to bite, cut, freeze and otherwise eat, the same, or give the same away with and without the pulp, juice, rind and seeds, anything herein before or hereinafter or in any deed, or deeds, instruments of whatever nature or kind whatsoever to the contrary in anywise notwithstanding...’"

Here is another example—in a pretrial ruling on a motion for a more definite statement in a complaint, the Honorable Ronald B. Leighton, United States District Judge, Western District of Washington at Tacoma, Washington provided gems of judicial humor when discussing a pleading. In Presidio Group, LLC, vs. GMAC Mortgage, LLC. Judge Leighton's order granting the motion began with William Shakespeare, Hamlet, Act 2, Scene 2, Line 90: “Brevity is the soul of wit.”

The good Judge then went on to point out that “(b)revity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” He then described portions of the 465-page Complaint:

Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages – including a 37-page pit-stop to quote e-mails. (Compl. 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages.

Then, in granting the motion, Judge Leighton added a bit of his own poetry:

Plaintiff has a great deal to say

But it seems he skipped Rule 8(a),

His Complaint is too long,

Which renders it wrong,

Please re-write and re-file today.

______________________________

To assist lawyers, Sally Bulford, a Utah prosecutor, provided these witty writing pointers for lawyers under the title “How to Write Good”:

1. Avoid alliteration. Always.

2. Prepositions are not words to end sentences with.

3. Avoid cliches like the plague. (They're old hat.)

4. Employ the vernacular.

5. Eschew ampersands & abbreviations, etc.

6. Parenthetical remarks (however relevant) are unnecessary.

7. It is wrong to ever split an infinitive.

8. Contractions aren't necessary.

9. Foreign words and phrases are not apropos.

10. One should never generalize.

11. Eliminate quotations. As Ralph Waldo Emerson said, "I hate quotations. Tell me what you know."

12. Comparisons are as bad as clichés.

13. Don't be redundant; don't use more words than necessary; it's highly superfluous.

14. Be more or less specific.

15. Understatement is always best.

16. One-word sentences? Eliminate.

17. Analogies in writing are like feathers on a snake.

18. The passive voice is to be avoided.

19. Go around the barn at high noon to avoid colloquialisms.

20. Even if a mixed metaphor sings, it should be derailed.

21. Who needs rhetorical questions?

22. Exaggeration is a billion times worse than understatement.

Not Just for Cross-Examination: Handbook for Public Speakers

 

Something for trial, something for cross-examination and something for other occasions. Click here for the book on Amazon 

How to Cross-Examine the Evasive Witness

 

In Chapter 10 of the Cross-Examination Handbook, we explore the different methods witnesses use to evade the question and how to control the witness. Recently, the inimitable Elliot Wilcox discussed this topic in a blog piece entitled, “How to Detect 'Non Answers' During Cross-Examination” Here’s what Elliot Wilcox has to say on the subject:

Prof. John Henry Wigmore argued that "Cross examination is the greatest legal engine ever invented for the discovery of truth."  But that's only true if the cross-examination is conducted by a skilled examiner.  Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it.  In the hands of a master craftsman, cross-examination can achieve remarkable results.  In the hands of a novice, it can often cause more harm than good.

To become a quality cross-examiner, you must master the ability to critically listen to  witness's answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you'll need to recognize is the "non-answer."  Expert witnesses and well-prepped witnesses are the best masters of the "non-answer."  At their finest, their responses don't even appear to be evasive.  They'll make it sound like they've answered your question, but in fact, they're completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear. 

If you've ever watched a political interview, you've probably seen "non-answers" in action.  The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:

Q: Are you prepared tonight to say that you've never had an extramarital affair?


A: I'm not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I'm not prepared to say that about anybody...  I have acknowledged causing pain in my marriage...

Some of your witnesses have mastered the art of giving non-responsive answers.  It's your obligation as a cross-examiner to ask follow-up questions and extract your desired answer.  Here are some examples of "non-answers" you should listen for:

Non-Answer #1: Completely Avoiding the Issue

Q: Does this skirt make me look fat?


A: I love you.  (Or you can try Dave Barry's response: Sticking a fork in one or both eyes to avoid answering... it's much less painful!)

Non-Answer #2: Describing Expected Procedures

Q: Did you request a CAT-scan?


A: It's normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?

A: Protocol demands that the chief executive be immediately apprised of matters like this.

Non-Answer #3: Saying What You Will Do or Hope to Do

Q: Do you support higher salaries for judges?

A: I think that's an important issue that we should address.

Q: How soon will you have the weaponized virus contained?

A: We're doing everything we can.

Non-Answer #4: Answering a Question with a Question

Q: Did you lock the store before you left that evening?

A: Why wouldn't I?

Non-Answer #5: Telling What They'd Normally Do in the Situation

Q: Did you check for tire wear patterns?


A: Normally, I would...

Q: No, what did you do?

Q: Did you call for backup before approaching the car?


A: Usually, in these situations...

Q: What specifically did you do in this situation?

Non-Answer #6: Describing What Others Did

Q: Did you find any drugs in the car?


A: We found several packages of cocaine in the center console.

Q: No, what did you find?

Q: Who located the firearm?

A: Our SWAT team found the firearm in the back bedroom.

Non-Answer #7: Guessing or Supposing

Q: Did you read the warning label?

A: I'm pretty sure I would have.

Non-Answer #8: The Speech or the Argument

Q: I'll ask for the fourth time. You ordered --

A: You want answers?

Q: I think I'm entitled to them.

A: You want answers?

Q: I want the truth!

A: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall.  We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!

Non-Answer #9: Half-Truths or Half-Answers

Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?

A: I spoke with Moff Tarkin on numerous occasions.

Q: Did you order the Code Red?

A: I did the job you sent me to do.

To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately.  Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question.  Once you recognize what they're trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.

How Not to Cross-Examine a Witness: Courtroom Humor

 

Don’t shoot yourself in the foot. Leading questions on cross. Leading questions. Leading questions. Open-ended cross-examination questions can have repercussions.

The following is a courtroom cross-examination exchange between a defense attorney and a plaintiff farmer with a bodily injury claim. 

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."

Source: Houston, Texas insurance agent.

New Book Launch: Management and Leadership Handbook

 

Here's something a little different--my new book, which was just launched. If you’re looking for guidance on how to achieve excellence and job satisfaction as a manager and leader in your law office or other organization and you want excellence and job satisfaction for the people in your organization, this Management and Leadership Handbook may be for you. 

This concise yet comprehensive Handbook is jammed with practical instructions on how to develop and exercise your management and leadership strategies and skills. The advice and wisdom in this book are derived not only from my 27-years of experiences in a prosecutor's office, two years with the National College of District Attorneys, six years with the National Advocacy Center and almost twenty years with Seattle University Law School but also from the best-of-the-best literature and teachers on management and leadership. 

This Handbook contains:

• A discussion of the distinction between a manager and leader and guidance on how to perform the roles and functions of both 

• Ways to prevent and eradicate the root causes of burnout—the stress builders and job changers

• Strategies for setting realistic goals for yourself and your colleagues

• Concrete advice on how to make people matter—to show appreciation and give support

• Insights into the importance of participative decision making and how to put it into play

• How to apply the variety and a manageable workload principles to the workplace

• Guidance regarding these keys to excellence—hiring and training

• How to stay in touch with the action and have fun

• A methodology for managing your personal and professional time and priorities 

.To achieve excellence for yourself, your colleagues, and your organization  and to find satisfaction in your professional and personal life, this book may be for you. Click here to read the book today.

What Not to Say in Cross-Examination

 

In this month's issue of the Bar Bulletin there is an article by Dr. Kevin Boully and Thomas M. O'Toole (my co-author on the Jury Selection Handbook) focusing on what not to say in trial. Regarding cross-examination the article discusses the important advice given in the Cross-Examination Handbook about not asking one question too many  and amplifies on why the axiom makes sense:

“The classic advice of not asking one question too many is consistent with the overarching goal of letting your jury reach the conclusion on their own, without you cramming it down their throat. In cross-exam, we still find far too often that trial lawyers want to ask the extra question, or worse, ask about the topic and areas of inquiry that dilute the overall effectiveness of the exam.

“During cross, pick your topics and areas of focus wisely and with discretion. There are few occasions a “scorched earth” approach is warranted and far more times when the most economical and effective approach is to be surgical, targeting those areas where the cross exam can score, simple, direct, useful points. A few criteria to consider for what not to say in cross exams include:

• Does the jury need the answer or its implication to make their decision? If not, you probably don't need it. 

• Does the jury know how the answer fits into your overall trial message? If not, you may not need it, or you may need to make it more clear before the jury can use it.n

• Will the jury receive the answer as consistent with the witnesses message? If the jury feels you want them to trust the witness on some things, but not others, you may need to pick an approach and stick to it. 

• Has the jury heard the same thing from another witness already? If so, you may want to consider whether the answer creates a positive cumulative effect (i.e., carries the power. of multiple voices) or creates unnecessary repetition (i.e., feels redundant). 

“Have the courage to be decisive about what not to say and what to leave out of your case presentation at these key moments. These approaches empower the jury to reach their own conclusion and use their own experiences and perceptions to fill the gaps for you leave for them. These approaches appeal to the egocentrism of processing information through their own lens (which can engage in the gaps you left for them), their penchant for efficient and economical decision making, as well as symbolic processing that is often based on the scenes, moments, and events that you give them the freedom to envision and complete.”

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.

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.

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.

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.

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.

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. 

 

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.

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.