Tuesday, October 31, 2023
Friday, October 27, 2023
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.
Monday, October 16, 2023
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.
Wednesday, October 11, 2023
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.
