McElhaney on Litigation
If You Don’t Look for Them, They Can Blow Up in Your Face
Posted Oct 24, 2006 4:46 AM CST
By James W. McElhaney
I can’t understand why I keep getting killed by cross-examination. Every case, win or lose, I either get slammed by some witness during cross or I pay the price later on for something I did when the witness was on the stand.
It isn’t fair. I’ve taken one of those trial advocacy courses. I follow the rules of cross. I only ask leading questions. I don’t ask why. I don’t argue with the witness. I never ask a witness to explain. I try not to ask one question too many. And I always save something for final argument.
But I must be doing something wrong because I get rocked by at least one explosion in every trial.
Shell-Shocked in Sheboygan
Dear Shell-Shocked: First, there are some additional rules of cross examination that should help:
• Ask short questions. They make it difficult for the witness to throw in extraneous material.
• Use only simple words. Complex language and unfamiliar words create confusion and loosen the reins of witness control.
• Never ask a question unless: You know the answer. The answer doesn’t matter. Any “bad” answer would be absurd. Or you can prove the “bad” answer is wrong.
• Always ask for facts—not opinions, interpretations or evaluations. Without your knowing it, they actually invite the witness to argue or give explanations you would rather not hear.
But even if you follow all the rules, cross examination is dangerous. It’s a minefield planted with evidence traps that release prejudicial information. It’s strewn with contradiction bombs that shower you with painful corrections. It’s scattered with humiliation grenades that cover your face with egg.
But while risk free cross is an unrealistic dream, the more you know about the different mines, the easier it is to avoid stepping on one that will damage your case.
Beware of Cheese
At the top of the list is the innocent sounding—but seriously dangerous—mousetrap. You have to understand, it isn’t something that just happens to be lying around. It was deliberately put there by your opponent.
The heart of the trap is the bait—which almost always looks like the enticing opportunity to take advantage of a big mistake the other lawyer just made. Like a beautiful piece of cheese accidentally dropped on the kitchen floor, the opposition’s mistake just seems too good not to pick up and carry away. You never notice the string tied around the cheese until it’s too late.
Say the other side’s medical expert is on the stand, and on direct examination the opposing lawyer carefully steers clear of asking the witness to try to explain away what seemed to be the weakest part of her opinion.
So you pursue it on cross examination, only to learn that a new study just came out in the New England Journal of Medicine that backs up the witness completely.
Snap! You’ve been mousetrapped.
Don’t Trip Yourself Up
Next is when you get caught in your own dishonest cross examination. Instantly you reject even the thought of it. What, me? Do a dishonest cross-examination (whatever that is)? Never.
The best example comes from the famous nose-biting case. The prosecution’s witness says the defendant bit off the victim’s nose in a fight, committing the crime of maiming. On cross-examination, defense counsel develops a series of questions and answers showing the witness could not have seen it happen—there were too many things blocking his view.
But then the defense lawyer can’t resist capping the series with the question: “Well, if all that’s true, how can you say that the defendant bit off the victim’s nose?” You already know the answer: “Because I saw him spit it out.”
But wait a second. How was that dishonest? For more than 100 years we’ve been laughing at this cross-examiner for asking one question too many.
But it wasn’t one question too many. It was a dishonest cross-examination that was intended to support a bad theory of the case. Its purpose was to make the jury think the nose was never bitten off or somebody else did it.
The point is, you sponsor all the reasonable implications of your cross-examination, and you’re accountable for them. So never conduct a dishonest cross—one you can’t believe in—unless you can make the jury understand that it was the only way to expose a lying witness. Even then they may worry about whether they can trust you anymore.
Down, Mongo, Down
Next comes the lowest common denominator. this land mine typically goes off when you let Mongo conduct the cross-examination. You know Mongo—your inner beast, the one in charge of fighting, feeding and fleeing. He has no sense of humor and, when aroused, no sense of proportion.
Watch Mongo at work in an actual trial.
Q: You’re lying, aren’t you?
A: Absolutely not. Everything I’ve told you is the truth.
Q: Even your name?
Q: You claim your name is Daniel Maguire?
Q: Ever use an alias?
Q: You listed in the telephone book?
Q: At 1422 Melrose Park Lane?
A: That’s me.
Q: Take a look at the phone book. Doesn’t it say Danny Maguire?
When Mongo tries to make a big deal over something that really doesn’t matter, everyone thinks, “Is that the best you can do?” And that thought pulls the rest of your cross-examination down with it.
Don’t Get Slammed
Then there’s the door opener, which works in all kinds of settings. Say you represent the defendant in a personal injury case. The plaintiff claims his wrist was terribly injured when the defendant’s car knocked him down while he was crossing the street. Now he can’t work as a machinist any longer.
While the plaintiff was in the hospital, he told an insurance investigator that his wrist had been troubling him for some time before the accident, and he had been afraid he was going to have to stop working as a machinist.
On direct examination, the plaintiff minimizes his problems with his wrist before the accident, so you go after it—confident he’ll have to admit what he said when you confront him on cross. But he doesn’t. He denies saying anything like that to anyone. The best fix is to find some other way to prove the plaintiff’s pre existing problem before you get to court. It’s too late once you’re in the middle of trial.
Finally, there is the other side of the coin. Say you represent the Griswold Engineering Co. in a big contract dispute. One of the most damaging witnesses against your side is Steve Marino, who used to work for Griswold but got fired three years ago. “There’s my cross examination,” you say. “Bias.”
So on cross you carefully bundle the five damaging facts from Marino’s direct by going over them one right after another. Then you try to tie them to the brick of bias so they’ll sink when you throw them overboard.
Q: Mr. Marino, you’ve got a strong personal reason for making your testimony against Griswold Engineering Co. as damaging as possible, don’t you?
A: I don’t know what you’re talking about.
Q: You worked for Griswold for nearly 10 years, didn’t you?
Q: And during that time you got married and started a family?
Q: Three children?
A: That’s right.
Q: Bought a house in the suburbs?
Q: And then you got fired, didn’t you?
A: Yes—by Mr. Griswold himself.
Stop right there. What’s going to have the bigger impact? Will Marino’s possible bias hurt the other side, or will Mr. Griswold’s callous treatment of Marino hurt you even more? Most jurors are going to look at the situation from the employee’s point of view. So what do all these traps mean to you?
Watch your step when you’re in the cross-examination minefield.
McElhaney at His Best The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s December 2000 issue under the headline “The Cross-Exam Minefield.”
James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.