This post is written by guest blogger and NITA faculty member Hugh Selby.
That cross you’ve just done, it’s the best I’ve watched and heard from you. Your questions were mostly closed, only open when you clearly had weighed up the possible costs against the benefits, nice and short and easy to understand, and well paced. You gave us all the time to reflect too – that’s so often forgotten by ‘gladiator-like’ cross-examiners who want to rush at the target and mistake the quantity of questions for the quality. That pause between the witness’ answer and your next question—well done. Those are all aspects of good cross that everyone here can admire and copy.
But here’s the ‘but’ – and this is the reason that you’re in this room, to learn the ‘but’ and how to fix it. In that last performance we were all your jurors, we were your key audience, but… you never considered our needs and our wants. Your performance was for you and the witness. It was personal; it was singular when it should have been for us. We, not the witness, are the targets of your persuasion.
The fix, now that you’ve mastered the simple technique methods, is to bring us—the decision makers—into your cross-indoctrination. To do that, ask the questions with a mix of body language and tone that shows your concern for gaining our respect, keeping our interest, and achieving our acceptance of your message. So look at us sometimes, share the topics of your cross with us and the witness so we know the journey on which you’re taking us, keep using those pauses to allow us to reflect, and direct our minds to be aligned with your case theory. That way, when you make your closing argument we’ll already be persuaded.
OK. Let’s have another performance. Let’s all aim during our questioning to build and keep a rapport with our decision makers.
Hugh has been a faculty member for NITA at multiple Building Trial Skills programs, including the National program in at which he taught. We would like to thank Hugh for writing this post and sharing his knowledge, and we would like to invite you to comment below with any questions or thoughts.
Please comment below and let us know how you’ve used vivid word pictures in your practice.
In this Quick Tip video, Lonny Rose helps us understand the ‘what, when, and how’ about Motions in Limine. He talks about the most common forms of using Motions in Limine, and how to use them in a tactical way.
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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.