written by NITA’s Program Development and Resource Director Mark Caldwell
On September 8, the nation was shocked and entranced to witness the in-elevator recording of football star Ray Rice knocking out his then fiancée. Domestic violence plagues our culture, with one in four women facing it at least once in her life. Our society’s voyeuristic nature suggests than most students will hear about, read about, or actually watch the video. The media—sports, news, and periodicals—will be filled with reports of the event. Questions over the investigation will abound.
The currency of this newly released video also focuses a learning opportunity for advocates. If you were Ray Rice’s lawyer, his wife’s counsel, or even Roger Goodell’s attorney, how would you conduct your examination of a witness in this event? Pausing to consider the risks that this blog post might border on sensationalism, I quickly recognized this: this is no better way to drive home the importance of mastering advocacy skills than by bringing it to life through a developing dramatic case. Here are some principles to guide direct examination in factually graphic cases.
- The power of word choice in examination. Lawyers can be squeamish in talking about sensitive subjects. We avoid talking about private body parts, giving names to events such as assaults and rape, or even drawing out discussion of events like horrid accidents, physical violence, or even heated arguments that use course language. We forget that as lawyers we are the voice of our clients and it is our responsibility to speak for them, including using words that accurately describe events and feelings. A direct examination that forces the examiner to call something child abuse instead of the “incident” is far more powerful.
- Avoiding “What happened next.” Examinations that plod along because the examiner shows no creativity except to ask “what happened next” are the bane of judges and juries alike. Inquiring of the victim/witness in a way that portrays the horror of an event is important. Explore thoughts and feelings in a way that brings the event alive to the fact finder.
- Using pacing to either slow or speed the perception of the event. How fast, or slow, an examination proceeds creates a sense of timing to the listener. By experimenting with how quickly or slowly we ask questions, get answers, and even put space between questions creates a sense of time passage to the listener. Adding questions about the thoughts and physical reactions of the witness also adds to the perception of speed—was it in the “blink of an eye” or the slow motion of instant replay?
- Dealing with bad facts or disarming cross-examination. Cases that go to trial often include a share of bad facts that each side must deal with. Offering an explanation, excuse, or changing the “spin” on the facts can blunt the power of cross-examination. Asking your witness the hard question—those that the fact finders wants to know and understand—is a valuable skill. Take the time to explore those bad facts. Remember primacy and recency. Ask these questions in the middle of your examination where they will be heard but not necessarily remembered.
- Handling a recanting witness. Far too often in domestic and child abuse cases, complaining witnesses recant their previous testimony. Handling a hostile witness on direct examination is an important skill. Make use of the video and other exhibits and demonstrative aids to illustrate the violence. Use of exhibits at trial is often forgotten, so the picture being worth a thousand words is an important lesson to remember. Familiarize yourself with the process of having a witness recognized as a hostile.
- Preparing a witness to testify on difficult issues. Prepare, prepare, prepare. Do not ignore or pay lip service to the process of preparing a witness to testify. Whether it is Janay Rice or Roger Goodell, the opportunity to practice responses to questions, vent and express anger, concerns, and fears, and to recognize counsel is there to help you be successful is critical.
How you present case story and specific facts and conduct yourself may be fraught with issues. Of utmost importance is sensitivity to the audience. Any perception you are making light of the subject of domestic violence or any other subject that would trigger an unforseen reaction must be avoided. Increase your awareness of how the fact finder reacts—remembering how many women have been victimized by domestic violence or rape.
Teaching in the moment through the use of current events can enliven advocacy classes. Newsworthy events bring a greater sense of reality to the classroom and offer opportunities for discussions on skills, professionalism, and ethics. Done with care and sensitivity, these opportunities make for a more engaging course. Recognized by trial lawyers, current events give us the opportunity to reflect on how we can improve ourselves.
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!
On November 19th my wife suffered a hemorrhagic stroke when a vessel in her brain ripped open. She was rushed by ambulance and then helicopter to the city’s best trauma center and has been in the Intensive Care Unit ever since. I have spent each of the past twenty-four days at her side.
At first I tried to listen and understand as the medical professionals described what was happening. I tried to use my best direct examination techniques to find out the processes they were using to care for my wife. Gradually, I found myself, like Ibn Fadlan, the protagonist in Michael Crichton’s novel, Eaters of the Dead (later turned into the movie The 13th Warrior) learning the language of the ICU through listening. I found I could speak in their language, using acronyms and technical terms that I picked up through conversations and from overhearing the discussions between the doctors on my wife’s care team.
At the end of each day I would try to explain what I had learned and the nature of the care being provided to others interested in my wife’s health. Much to my consternation I found I had to stop and translate the terms that had been used during the day. Then, it hit me like a “cosmic whack on the side of the head.” I had fallen into the same trap that we talk to lawyers about examining expert witnesses. Instead of being clear and using terms and concepts all could understand I had reverted to the technical speak of the medical staff.
Learn from my mistake for the next time you examine an expert. You will have spent hours with the expert learning the language, discussing the nuances of her report, debating the opinions of the other side’s expert, and living with the science of the expert’s field. Like me, you will have mastered the language of the expertise.
Federal Rule of Evidence 702 provides the basis and reason for expert testimony.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The operant words in this portion of the rule are will help the trier of fact to understand the evidence or to determine a fact at issue. If you and your expert are speaking in tongues you cannot possibly help the judge or jury understand a piece of evidence or determine a fact. You may know the acronym or term being used by your witness but do not presume everyone else has any idea of the meaning.
Make your expert a teacher. While there is no need to make each person as authoritative as the witness, you do want to help them appreciate the evidence. When a unique term is used, ask the witness to help everyone understand the meaning. When using charts, diagrams or other visual representations ask for clarification and specifics. Inquire what something suggests in interpretation. Make use of that wonderful question “Why?”. Most of all, do not flood the judge and jury with information that does not directly lead to a better understanding of the story of your case. Ask your witness to make comparisons to everyday occurrences that anyone may have experienced.
By being a thoughtful inquisitor you can truly help the trier of fact better understand the evidence or determine a fact. Having learned this lesson in a most memorable way, I can assure you it is worth the time to think through the translation of terms and concepts so people relate to the information you and your expert are sharing.