Written by guest blogger, Peter Lyons
It’s called the Code Red scene.
Tom Cruise is Lieutenant Kaffee and he’s cross-examining Jack Nicholson. It’s supposed to be Colonel Jessep, but it’s really Jack.
It’s pretty clear that Kaffee hasn’t been trained by NITA.
He is angry. “Colonel Jessep. Did you order the Code Red?”
“You want answers?” yells Jack.
“I think I’m entitled.”
“You want answers?”
The lieutenant screams, “I want the truth!”
Nicholson: “You can’t handle the truth!”
Then unfortunately for the cross-examiner, the witness delivers a spellbinding and quite persuasive speech that lasts for more than a minute.
Undaunted, Kaffee shouts the “Did you?” question again and moves menacingly towards the witness.
It works. He gets the “yes” answer, and Jack growls menacingly, “You’re damn right I did!”
We have all had a Tom Cruise in our courses — well, perhaps not in the looks department, but there is often a student who thinks cross-examination should be done Hollywood style.
Unfortunately, the Cruise routine is seen by lawyers over on this side of the lagoon as a typical of American attorneys. I know it’s wrong and you know it’s wrong, but perceptions are sometimes tough to shift.
In England, where everything that’s good was invented, the Bar Rules are plain. A barrister:
(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgement upon the substance and purpose of statements made and questions asked; and
(b) must not make statements or ask questions that are merely scandalous or intended or calculated only to vilify, insult, or annoy either a witness or some other person.
The great Norman Birkett K.C. was famous for delivering well-mannered but lethal cross-examinations.
His clerk of 20 years, A.E. Bowker, wrote: “Never once did I know him to enter a court without a perfect thorough knowledge of his brief. Nor can I recall any occasion when he had ‘words’ with the Bench or his opponent. Neither, indeed, can I recollect any witness whom he did not treat with courtesy and politeness, even though he might challenge the evidence they gave.” (Behind the Bar, Staples Press, 1947)
Birkett thought an advocate should be able at all times to control his temper. “He should be severe when severity is demanded, and he should be gentle when gentleness brings its own rich rewards.”
(Presidential Address, Holdsworth Club, Birmingham, 1954)
On the European continent, particularly in arbitration, aggressive cross-examination is seen as bullying:
“The interests of justice are not well served by the transcripts of the interrogation of frightened witnesses by skilled and manipulative cross-examiners.” (Redfern and Hunter, 5th edition, par 6.209)
In a speech entitled “The Lawyer’s Duty to Arbitrate in Good Faith” (2001), barrister V.V. Veeder Q.C. said that “arbitrators tend to discount severe or bullying cross-examinations on the basis that it demonstrates no more than the cleverness of the cross-examiner rather than the lack of credibility of the witness.”
It would be hard to say that Lieutenant Kaffee’s cross-examination was clever. But then I don’t think Jack was frightened, do you?
Trial lawyers are historians, archaeologists, story tellers, and teachers. Their job is to capture and keep the jury’s attention, and then teach and persuade “what happened and why.” Ultimately, the jury must understand what the lawyer is saying. But lawyers who do not do many jury trials often forget who their audience is. They use “lawyerese”, the fifty-cent words they first learned in law school, that is suited only to arguments to a court. The jury may be made up of folks whose only qualifications for being on the venire panel is that they have a driver’s license, are a U.S. citizen, live in the jurisdiction, and have no felony convictions. They may have not graduated from high school. They may be only partially literate. English may be a second language. Language pitched even to the level of a college graduate may not be understood. The savvy trial lawyer not only avoids legalese, but also words learned in college. They use what I call “nickel words,” not “quarter or fifty-cent” words. (Perhaps with inflation we should say, they use “one dollar” words, not “50 or 100 dollar” words.)
Jurors may not understand what “prior” and “subsequent” mean. Use “before” and “after.” Why ask if a witness “proceeded” to somewhere? Ask if he or she “went” there. A person “signed” a contract; he did not “execute” it. (With what weapon, a juror may wonder.)
It is not easy to rid oneself of our highly educated language habits, because habits they are. It takes a conscious effort at first. A helpful device is to practice your jury remarks – voir dire, opening and closing statements — in front of a non-lawyer and ask them to raise their hand whenever they hear a word that might be difficult for a public high school senior to understand. When preparing your address to the jury, imagine that you will be making it to your mother or grandmother (assuming they are not lawyers) or a teenage child. This may cause you to put your remarks in simpler terms. Scan your direct and cross questions one more time with one purpose: look for and eliminate all lawyerese and fifty-cent words.
The danger in simplifying your language for a jury is that you’ll appear to be talking down to them. The line between speaking in easily understood terms and talking down to them is hard to identify. Perhaps all that can be said on this score is that the lawyer should avoid using slang and current colloquialisms that do not befit a professional acting in a professional role. No, “What up?” or “Dat was sooo bogus!” Use correct English, correct grammar, correct syntax. You must meet the jury’s expectations for lawyers. That is, you are a highly educated professional who should not talk like the guys enjoying beers and watching football on the TV at the local pub. Lowering your vocabulary to that level will sound fake and be resented. Talk to the jury like you would talk to your teenage son or daughter, or to your non-lawyer neighbor: plainly and respectfully. After a while and concerted effort, it will come naturally to you at that very special moment when you stand to speak to the jury on behalf of your client.
Let’s take a short journey along a litigation road in which all the signs are written in English but the conversations and the sights, as in Gulliver’s Travels, are unfamiliar.
Asked whether we want to take the high road of civil or the low road of crime we opt for the high road, expecting to shortly arrive at Depositions Inn where we will tarry for quite some time in lengthy conversations with those who oppose us. But there is no such Inn. Instead we are dropped off at the Affidavit Circus where we find lawyers, each in their own office, rapidly writing down the stories of their witnesses and having each such witness swear to or affirm to the truth of their account. Lawyers run to and fro giving their opponents copies of these affidavits and then scurrying back to their own offices to have their witnesses give replies to the lies and inventions of the other side.
From the Circus we travel to Trial Square, right in front of the court house, where we find lawyers efficiently resolving problems that have been unsolvable for years. It seems that the threat of having to run a case, or be a witness, lifts the fog of indecision revealing the bright reality of ‘let’s cut a deal and be done with this’.
Inside the court house trials are under way, all of them bench trials with the old jury rooms turned into offices and witness rooms. But the only witnesses to be seen are those who have received a notice from the other side to attend for cross-examination. In many cases the advocate tenders the affidavit of the non-present witness, there are some rulings on objections, the affidavit becomes the evidence, and the advocate moves to the next affidavit.
Ah, here at last, a courtroom where a witness is in the box being cross-examined. The advocate is raising differences in the story told by their witness and that of this witness. The term ‘impeachment’ is thought to refer to American Presidents in trouble.
‘Trouble’ means excitement. We hear that it’s more exciting in the criminal courts and rush down to a criminal trial where jurors are trying hard to pay attention to mind-numbing details of telephone intercepts or financial records. We’re told that we should stick around because the prosecution’s next witness will be entertaining.
The defense has been given the statements of all the prosecution’s witnesses. These statements are not sworn or affirmed but they do allow the defense – who do not have to give their witness statements to the prosecution – the best chance to devise a telling cross-examination.
Nevertheless the defense has a dilemma. They have been careful to make sure that their client has not told them what happened. This is not a sex offence matter in which ‘consent’ is the only issue. In those cases the defense advocate needs to know their client’s case in great detail. No, this is the classic case in which the defense is, “make them prove it” and so the advocate’s strategy is to test and probe and find weaknesses in the prosecution’s case, always drawing upon life experience that is not fettered by knowledge of what their client did or didn’t do. The dilemma comes at the end of the prosecution case. If that case is strong, if the jury would go out now and come back with a guilty verdict, then the accused has to give evidence. If that is going to happen then in this strange world the defense lawyer must ask the judge to recall some of the prosecution witnesses so that each of them can be given the fair opportunity to say that the accused’s forthcoming version of events is nonsense. You try hard to fathom the sense of this, but finding none you look for another jury trial.
What you find instead is a sentencing hearing. You hear the agreed facts being read out to the judge. There is a victim impact statement. You expect a jail sentence but the offender is sentenced to weekend detention. You stay for the next case and the next, always surprised by how little use is being made of incarceration.
It’s lunchtime so you go outside, watching people who like you are caught up in the law and justice industry, sipping their coffees and eating their wraps. You see that their way is just that – theirs. You pick up your file and head downtown to take a deposition as that’s the only way you are going to reach your billable units target. Other English speaking litigation lawyers don’t have depositions – well that’s their problem.
Hugh Selby (c) teaches advocacy in Australia. With his NITA colleagues Chris Behan and Charlie Rose he runs www.advocacyteaching.blogspot.com.