written by guest blogger, NITA’s Public Program Development & Resource Director Mark Caldwell, JD
We are approaching the twenty-sixth anniversary of the passing of Irving Younger, one of the truly great teachers of trial skills. Younger was at times a practicing lawyer, a sitting trial judge, and a law professor. His lectures were famously entertaining and memorable. Perhaps Younger’s most famous presentation was the Ten Commandments of Cross-Examination. Lawyers just starting their trial practice are well advised to adhere to these rules.
Younger’s Fourth Commandment is: Never ask a question that you do not know the answer to (unless you don’t care what the answer is). Sound advice, especially in our age of discovery practice, where virtually every fact has been revealed through interrogatories, depositions, requests for production, admissions, and stipulations. It is the reason why surprise was removed from the list of Relevance objections in Rule of Evidence 403, as one of the grounds. By the time you reach trial, you should, in theory, know the answer to the questions you ask during cross.
But hold on: not every case has the luxury of discovery. Besides, criminal cases in most jurisdictions, hearings, matters where a party or witness is a foreign national, and trial-like circumstances such as arbitrations may not permit or have time for discovery. How can you cross-examine a witness when you do not know the answer? Is this truly a game of Blind Man’s Bluff?
“How can you cross when you don’t have information?” is a question often asked by participants of program instructors. To quote cartoon character Elmer Fudd: “Wery, wery carefully.” The answer sounds flip, but it is the start of the answer to blind cross-examination. Litigation is not a risk-free passtime. It is better to have a plan then to pray it will never happen. Following are some ideas that will make blind cross-examination less intimidating.
The first piece of the solution comes from Younger’s First Commandment: Be brief, short, and succinct. Cross-examination should be a “commando raid.” In and out. It is not the invasion of Normandy. You should avoid making more than three points on cross-examination. Two points are better than three, and one point is better than two. Even with limited information, you can score a few points that help your case.
Professor Peter Hoffman, who teaches at Elon University School of Law, talks about beginning your cross-examination with points of agreement, facts that both sides may agree upon that you may use to bolster your case story. Such softball questions also begin to control the witness and train her to answer your questions.
Professor JC Lore, who directs the advocacy program at Rutgers University School of Law, Camden, reinforces the point by reminding us that juries expect cross-examination. If you are not sure of questions that might do damage to the witness, you can still meet juror expectations by doing a short cross-examination on neutral or beneficial information that you learned during direct. While this violates Younger’s Seventh Commandment about not repeating information, it confirms that positive information that supports your story of the case straight from the mouth of your opponent’s witness. Such a neutral cross also suggests to the jury that you are not conceding the information from this witness, or worse, endorsing the other side’s story.
In a March 1994 article in the American Bar Association Journal, Professor James McElhaney discusses how you overcome problems associated with a lack of information. Like Saul, who had scales fall from his eyes and he could see again (Acts 9:18), we can also uncover information during trial. One such way of gathering information during trial is taking advantage of a witness whose memory has been refreshed under FRE 612. The rule provides that:
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Do not take the cursory look at these materials. Instead, ask the court for time to review the document and gather information.
Even if the witness does not need to refresh memory during direct examination you may still inquire if the witness used anything to refresh her memory before testifying. If the answer is yes, you may ask the court if you may review the things used in preparation for testimony—“if the court in its discretion determines it is necessary in the interests of justice.” Just remember, you have to ask the question.
Another way McElhaney suggests for gathering information during trial is to ask to voir dire the witness before she testifies. It is something that is done quite often and, if the judge permits you to voir dire, you can gather information on a witness’s qualifications or the admissibility of testimony. This may be information you can use once the jury returns. When asking to voir dire, use judgment and care. Follow these suggestions:
1) Do not ask to voir dire with every witness.
2) Be surgical through limiting your questions to qualifications and admissibility.
Just because you haven’t been able to interview or depose the witness you are about to cross doesn’t mean you don’t have information to assist you with your examination. What are some of these sources? Consider using:
1) Investigative reports. Police and investigator reports are a vast source of information that may even include statements from the witness. If the witness spoke with someone else before trial and that statement is inconsistent with what was said in direct examination you may use that disagreeing statement to impeach the witness. Since impeachment is a form of cross-examination, this is a perfect fit.
2) An investigator. You may not have access to the witness, but you can employ someone to visit the scene, take photographs, making diagrams, and interview others. In some ways, this takes the situation out of true blind cross. No matter how you look at the use of investigators, they confirm facts and get you potential dirt.
3) Quoting documents. You may have a document from someone who will not testify, but the document quotes the witness. While you are not able to use one person’s statement to impeach another, you may use it to refresh recollection. The document does not have to be that of the witness. It does not even have to be admissible to be used to help the witness recall. While you may not be able to get the witness to change her story based on the refreshing document, you may still get an admission that the statement is the witness’s. The key here is the setup question: “Do you recall telling [the author] that . . . ?” Even if the witness responds with a “no,” you are able to follow up by saying, “Maybe it would help you remember if you looked at the report.” Ordinarily, we do want to test a witness’s recollection on cross-examination. Here, it is exactly what you need.
4) Another person’s statement. You might have a contradictory statement from someone who may not testify. You are not able to use this statement to impeach the witness. The famous question using another’s statement is, “If I told you there was another person who told us the opposite, would that person be lying?” Unfortunately, this questions is objectionable as speculation and argumentative. The most mileage you can get from a contrary statement from someone who will not testify is to get an admission there is another witness who could testify about what she saw.
5) Other documents. Look for documents that may be in your possession that will illustrate contradictions, bias, or mistakes. Exhibits provide ample opportunity for scoring these type of points.
Under no circumstance is this the time to ask open-ended questions. Open questions give the witness the opportunity to repeat his direct examination one more time. Follow the rules of good cross-examination: always ask narrow, leading questions to carefully chip away at the testimony.
Blind cross-examination is about taking calculated risks. Successful risk-taking requires having an exit plan to abort the cross in the event it begins to go in the wrong direction. When you do blind cross-examination, remember the writings on ancient maps: Hic sunt dracones (Here be dragons). The phrase warns of dangerous or unexplored territories. Such is the realm of blind cross-examination.
Franklin Roosevelt once told us, “We have nothing to fear except fear itself.” This is true for blind cross-examination. Embrace the fear, use what you know, and follow Younger’s First Commandment on less being more. But avoid those dragons!
written by guest blogger and NITA faculty member Linda Lane
Less is more. We know this. Yet, perhaps more than any other time in trial, cross-examination poses the most dangerous trap for self-impressed attorneys. We become blinded to this simple truth by our own brilliance or potential for brilliance. In preparing for cross-examination, we would benefit from remembering that less is truly more.
Cross-examination presents a unique opportunity for one side of the case to completely interrupt the flow of the opponent’s case-in-chief. Cross-exam allows us, in the middle of the other side’s coherent story, to stand up and make our points with each witness presented by our opponent. To remind the jury of our story in the midst of hearing the other guy’s story.
Many lawyers waste this rare chance by complicating things with unnecessary details. Wasting time or simply wasting dramatic effect. Risking losing the jurors’ perception of our confidence that we are winning this battle. Possibly risking adding weight or sympathy to the other side. Talking too much.
Our inability to stop may stem from our Technicolor visions of masterful, “gotcha” cross-examination moments depicted in Law & Order, The Verdict, possibly even My Cousin Vinny. It may also stem from well-intentioned cross-examination training where we are reminded again and again that we are the star of cross-exam, the focus should be on us as the examiner, we must score points by whipping the witness in to shape. This is all true. However, in order for these precious moments to have the most bang for their buck and not simply be lost on the jury, we must simplify and hone our cross-examination to make it most effective. We must not get lost in our own rhetoric. We must trim the fat.
In even the most complex of cases, ideal cross-examinations will typically establish three to five soundbites from the adverse witness. This winnowing forces us to choose what is important with this witness at this point in the trial. To decide which points to focus on, we can ask ourselves the following questions:
Each soundbite should be developed with short, clear questions. Questions should be stripped of adjectives, adverbs, inferences, and conclusions. Responses should be anticipated. There should be a plan in place to overcome interference from the witness. Ammunition should be at the ready to impeach. The lines of questioning should set out crucial details that will compel belief.
Brevity is difficult. It requires organization. It requires planning. It sometimes requires stifling our own brilliance. However, brevity will minimize risk. Brevity will enhance memorability. Brevity will give the examiner control over the witness. Brevity is harder to evade. Less will truly be more.
Linda Lane is a USD School of Law Trial Advocacy Professor and solo practicing lawyer specializing in consumer product advisement. She regularly provides consultation and advice to her clients regarding potential product liability exposure related to new or existing product lines. Since the U.S. Consumer Product Safety Commission approved the Consumer Product Safety Improvement Act of 2008 (CPSIA), Ms. Lane has actively assisted many clients in ensuring that they are in compliance with the new, heightened regulatory requirements for consumer products
How strongly armed is a person who can use savings, investments, and other assets to increase his individual income? How well can anyone with access to useable capital make a difference in accelerating “family money” to create more security and earning power through inheritance? What is the mechanism by which capital shapes society, culture, and a nation’s future? Is income just as important?
Most importantly, as capital gathers strength and income capacity increases, how do the two exert a force on society? What is the position of citizens who have good earning power but little savings? What is the power of citizens who have not only income, but also wealth? Putting politics aside, how is a society shaped and changed by the relative forces of income and capital? In short, how do the distribution of income and the distribution of wealth change over time, and what are the forces that work between them?
Capital in the Twenty-First Century, the 2014 landmark book by Thomas Piketty, tackles these questions. More credibly than can be expressed by a political tome or a philosophy or theoretical school of thought, Capital starts with data – big data from the 18th Century to 2010. If you have wondered about the questions posed above, or mused about what political approach is advised, or even whether any political view is based in fact, this book will enthrall you.
I care deeply about the questions I pose, and so does NITA. Certainly, NITA focuses on “justice” rather than “capital” to bring to our society a greater chance to fulfill the promise of democracy. But the convergence of NITA’s focus and the income/capital puzzle leaps out from Piketty’s results. Please allow me to paraphrase knowing that I will err in both language and restatement of Piketty’s highly nuanced and consistent teachings:
Here is the good news: Piketty addresses what exists to create forces of convergence of economic power rather than further divergence of income and wealth distribution. One factor wins out above all others: Listen:
“The main forces for convergence are the diffusion of knowledge and investment in training and skills.” (at 21)
“The diffusion of knowledge is only partially natural and spontaneous. It also depends in large part on educational policies, access to training and to the acquisition of appropriate skills, and associated institutions.” (at 22)
NITA’s work is, indeed, working for such economic convergence. NITA’s work to strengthen access to justice is fundamentally important in providing those with lower income and less wealth to lead stable lives. We diffuse knowledge — We invest our entire efforts into training and skills.
And as we reach out to build greater skills in the profession, we specifically reach out to enroll also those who represent populations without either income or wealth, as well as those who can self-pay.
At NITA, we talk about this as Public Service – helping those who need access to justice by helping their lawyers increase knowledge and skills, and also helping those lawyers who do not have resources to come to NITA. We are an institution that is, in its DNA, helping to converge economic forces toward a strong and just society.
We need your help in this.
Stay tuned. This is a theme on which I will continue to share my thinking. And I welcome your thoughts. How can we access more resources ourselves, in order to increase our Public Service?
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
written by guest blogger and NITA 2014 Next Generation Faculty Amy Hanley
We’re all familiar with the stereotype of criminal prosecutors. My own mother believes my daily contact with others is a series of hostile interrogations, one after the other, with me emerging triumphant. Jurors expect us to be harsh, and as a result, we often confirm this perception, conducting lengthy, aggressive cross-examinations that are more show than substance.
While there’s certainly a time and place for the forceful cross, I suggest our default mode should be finesse. Outsmart the guy accused of murder instead of verbally bludgeoning him. For this, you must stay relaxed, pack your razor blade instead of your axe, and have the confidence to know when to sit down.
Control yourself. The adrenaline is pumping and you want to show the defendant you’re the boss. You are in dangerous territory for two reasons: 1) You risk damaging your case if you let emotions dictate your questions. 2) You risk creating sympathy for the defendant if you are too quick to attack. Before the defendant takes the stand, knock out a quick 60 seconds of physical activity to burn off extra energy. A few flights of stairs in four-inch heels takes care of that for me. Find what works for you.
Control the witness. Let’s be clear—sarcasm and screaming are not options. Lawyers control witnesses with the form of their questions. Ask short, leading questions that include only one fact. Resist the urge to ask the conclusion question—which the defendant will never agree with, and which may allow him to explain everything away. Save that conclusion for closing argument, when his only option is to write angry notes to his counsel. Make small cuts instead of large hacks: locking down testimony inconsistent with other evidence, gaining helpful concessions to what he thinks are unimportant facts, and impeaching when necessary.
Consider your approach carefully. The jury is dying to hear what the defendant has to say, but don’t forget you are center stage as well. Jurors notice and scrutinize every angle of your performance: “Her voice gets higher when she’s angry.” “She’s not giving him a chance to explain.” “She’s wearing her glasses today to try to intimidate him.” (True story, by the way, on the glasses. Despite the perceived drama with my decision to don spectacles, I had actually just torn a contact and, due to a poor packing job, had no back-up.) Above I told you what jurors expect from a prosecutor. That doesn’t mean they will approve. Defendants are like any other witness. Tailor your approach to the demeanor of the defendant. You’ll likely need a combination of tough, fair, and even charming. You don’t lose points for being nice to someone accused of a crime. You are just a professional doing your job.
Stop once when you’ve made your points. If cross is going well, this may be the most difficult part. It’s especially true if the defendant’s direct examination has gone on for hours or even days. Do not respond in kind. Get in, get out, and sit down. Trust me—the jury will thank you.
written by guest blogger and NITA 2014 Next Generation Faculty member, Monique Carter
When it comes to cross-examination, the “I don’t know” (IDK) response should put the skilled examiner on high alert. This is an opportunity to move the theme and theory forward. When “IDK” is given, it’s time to pull out tools from the proverbial tool chest and start drilling down.
Tool 1: The Knock Out. The “IDK” can give you the opportunity, if appropriate, to take the witness out of game or issue. When the witness gives the “IDK,” commit the witness to the “fact” they don’t know: they cannot say it did happen—or vice versa, they cannot say it did not happen. Keep the follow-up question to either option and move on. You don’t want to get greedy and waste the opportunity.
Tool 2: The “Oh Really.” This is a chance to develop why the “IDK” is unbelievable or actual perfidy. Step one in using this tool is to remind or establish for the finder of fact why the witness should reasonably know the answer. For example: “You were in the operating room? You were the lead surgeon? You were responsible for the supervision of your resident in the operating room? You were responsible for the patient’s surgery?” Step two: “You don’t know who marked the patient with the ‘tattoos’ identifying the surgical site?” You may, depending on your examination, take a more pithy approach. For example: “You were the lead detective on the case? And you don’t know . . . ?”
Tool 3: The Prior Recollection Recorded. If the witness gives the “IDK” and you can establish the existence of (1) a record (2) concerning a matter which the witness once had knowledge (3) but now has insufficient recollection to testify fully and accurately (4) and the record was made/adopted by the witness (5) when the matter was fresh in his memory (6) and reflects that knowledge correctly, then you can utilize the hearsay exception, prior recollection recorded (Federal Rules of Evidence § 803(5)). According to FRE § 803(5), the witness reads the record into evidence; however, since this is cross-examination, I would advise that you read the record into evidence to maintain control.
Tool 4: The Impeachment. If a witness testifies “IDK” to something that she previously had knowledge of, it’s possible to impeach by asserting that the “IDK” is actually an inconsistent statement. Generally, it is true that the testimony of a witness indicating “IDK” is not inconsistent with a prior statement describing the event. However, if you can establish that the “IDK” is inconsistent “in effect,” then you may be able to impeach. For example: “You made a report with the police immediately after the car accident? You knew the condition of the roads then? You gave a deposition one month later? You knew the condition of the roads then? You spoke to my investigator two months ago? You knew the condition of the roads then?” Once you have established the witness has “in effect” testified inconsistently to a prior statement, you can impeach her with the prior inconsistent statement or statements.
Tool 5: The Refresh Recollection. The “IDK” and the “I don’t remember” are similar, but require different approaches. It is improper to attempt to refresh the witness’s recollection when “IDK” is the answer and not a failure of recollection; the witness has not technically testified to a failure of recollection. You should make every effort to elicit a response that demonstrates a failure of recollection. For example: “Are you saying you don’t remember?” or “Are you sure you don’t know?” or “Is it more likely you don’t remember?” If the witness expresses a failure of recollection or a possible failure of recollection, you can then attempt to refresh his recollection. You should state in your question what you are suggesting will refresh his recollection. For example: “Would looking at the progress notes refresh your recollection?” or “Would looking at the surgical notes refresh your recollection?” Even if the witness persists with “IDK,” the finder of fact will be dubious of the testimony when you present the witness with items that would naturally refresh his recollection.
Tool 6: Let It Go. It is natural for the human mind to forget facts. If the witness truly does not remember, then it may be best to let it go and move on. If the question is that important, make use of the other tools or have another witness establish the fact.
You, as the practitioner, get to decide how to handle the “IDK.” Each tool has its own benefit. Employ whichever tool advances your theme and theory best. Ultimately, next time you get the “IDK,” you will have the tools in your chest to win the war.