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. 

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.

Controlling the Witness during Cross-Examination

This is another in the series of articles here focusing on the methodology that is key to an effective cross-examination. The methodology has four components: 

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

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

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

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

Here we examine the fourth—CONTROL of the witness.

The late great Irving Younger gave us the 10 COMMANDMENTS OF CROSS

1. Be brief

2. Short questions

3. Leading

4. Know answer

5. Listen answer

6. No quarrelling

7. No explanation

8. Don’t repeat direct

9. Avoid too many questions

10. Persuade during closing not cross  

Follow these or suffer the consequences. Follow these commandments and you control the witness. Watch Professor Younger lecture on the Ten Commandments.

 

The Character of the Cross-Examiner

 

This is another in the series of articles focusing on the methodology that is key to an effective cross-examination. The methodology has four components: 

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

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

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

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

We have in previous post examined how to select the CONTENT of cross-examination and how to CONSTRUCT the cross-examination. This post focuses on a critical part of a successful cross—the CHARACTER of the cross-examiner.

Not enough can be said about this next component of cross—the CHARACTER OF THE CROSS-EXAMINER. Character means the “ethical and mental features that distinguish and mark a person”

One lawyer who could serve as a ROLE MODEL of all cross-examiners is Abe Lincoln. In his 23 years as a lawyer, he tried more cases than any other lawyer in Illinois and had more cases before the highest court than any other. It was written about him that “as a cross-examiner he had no equal at the bar and we betide the unlucky individual who suppressed the truth or colored it.”

Lincoln’s motto was: “Better to make a life than a living.”

He was known on more than one occasion to cease to cooperate with co-counsel, saying, “If I say a word (to the jury) they will see from my face that the man is guilty.”

During your cross, do you project – Integrity? Fairness? Sincerity?

The kind of character Lincoln understood was right and expected by the jury. In The Art of Cross-Examination Francis Wellman spelled it out for us in 1903:

“Counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who is courteous to those who testify against him. . . who seems to know what he is about and sits down when he has accomplished it – he it is who creates an atmosphere in favor of the side he represents, a powerful though subconscious influence with the jury in arriving at their verdict 

“On the other hand, the lawyer who wearies the court and jury with endless and pointless cross-examinations; who is constantly losing his temper and showing his teeth to the witnesses. . . prejudices a jury against himself and the client he represents. . .”

A fair-minded seeker of truth doesn’t attack a truthful witness or one perceived as truthful.

Jurors are usually sympathetic with witnesses and skeptical of attorneys. Therefore, don’t get ahead of the jury. The jury must perceive the witness as untruthful or mistaken or evasive before they are willing to accept an aggressive cross. Sadly, too many trial lawyers approach every defense witness as though they are committing perjury

Besides, you don’t need to be cross to cross-examine.