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:
- Will this be usable in closing?
- Is it a reasonable point that this witness will accept?
- Does it support my theme?
- Is it central to my theory?
- Will the jury track it and understand it?
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
written by guest blogger and NITA faculty member Linda Lane
How can you tell when a lawyer is lying? His lips are moving.
Have you heard that one? Chances are good that so has your jury!
Ours is an uphill battle, especially at the early stage of voir dire. In a juror’s eyes, you are the one that is perhaps single-handedly responsible for plucking her out of her happy existence and putting her in this courtroom. She received her jury summons weeks ago. She has been dreading this day. She has arranged coverage for other areas of her life. She may have even tried to post-pone it once, or twice. There are at least a dozen places that she should be instead of this courtroom. You are interrupting her life. You are an inconvenience. And she doesn’t trust you. She has heard the lawyer jokes.
Your job as the attorney conducting voir dire is to begin the process of dissuading your jury of their preconceived notions of attorneys and becoming their trusted guide through the trial.
This begins at voir dire. Truly, this begins the moment they first see you. Even if it’s in the parking lot before trial. They will watch how you treat others. They will watch how you treat the Court and its staff. They will especially watch how you treat them and their fellow jurors in voir dire. As soon as they are in the jury box, it is “us” and “them.” They have an instant bond with their fellow jurors and you are separate, you are “them.” You must treat each one with respect—even those that you know you will challenge and be rid of. Maybe, especially those. The rest will have witnessed it and will remain in the box.
Voir dire is an amazing opportunity to interact with the jury, before the trial, on a personal level. As such, you need to take full advantage of it. You need to be human. You need to look at them, in the eye. You need to respect them. You need to be kind (but not syrupy, disingenuous). You need to listen when they talk. You need to pay attention to them. You need to be interested in them. You need to call them by name. You will be asking them to trust you in this trial and you must give them grounds to do so.
You need to show appropriate sympathy when they tell you why they cannot serve on this jury. Your potential juror’s mother died of a heart attack earlier this year and he doesn’t think he can be fair in evaluating a malpractice claim based on the prescription of a cardiac drug. First, acknowledge his response and express appropriate sympathy for his loss, give thanks for his openness and honesty. Only then, try to note, through appropriate questions, how your case differs.
Of course you also should do all of the things we are taught about voir dire: artfully weave in your trial themes; choose words that spin your case the way you want it spun; de-select those jurors who seem pre-disposed against you, your client, or the facts; identify leaders and followers. But, possibly the most important lesson of voir dire—and the one most easily forgotten when we are stressed, being watched by our client or senior partners, and on the eve of what might be the most important week(s) of your client’s business or your career—is to take time to be kind and show respect.
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.