McElhaney on Litigation
It’s All About You
Use cross-exam to get their witness to agree to your version of the case
Posted Sep 1, 2010 2:20 AM CDT
By Jim McElhaney Columns
Three weeks ago—before starting the trial of their firm's first important case—Maria Archuleta, Mike Pirelli and Ernie Romero asked Angus for help on how to conduct effective direct examinations.
On Friday afternoon, just after resting their side of the case, they called Angus again. The defense was going to start presenting its side of the case on Monday. Could they have another session on trial skills—this one on cross-examination techniques?
"Certainly," said Angus. "Same method of payment as last time."
They knew what that meant. So Saturday morning the three of them showed up at Angus' office with a box of world-class oatmeal-raisin cookies and a giant thermos full of dark mountain roast Sumatran coffee.
"Before we get started," said Angus, "tell me how the defense behaved during your side of the case."
"We're up against "Tricky' Strickland, who left Windstrom & Crusher," said Maria. "He's started a defense firm with Sandra Panzer, and they're doing this case together. They pulled out all the stops, trying every cheap trick they could think of. But Judge Mudrock wouldn't let them get away with anything. As soon as we stood up—before we could even object—the judge would cut off their argumentative cross-examinations and snide little side comments. That made it easy for us to take the high ground."
"Good for you," said Angus. "Just make sure you stay there the rest of the case. So let's start with a few basic ideas about cross-examination before we get to the fine points.
"First, the purpose of cross is not to improve the witness's testimony. It's not your job to untangle an opponent's incomprehensible direct—which is what a surprising number of lawyers wind up doing.
"Second, with a few exceptions, the purpose of cross is not to make the other side's witness your own, which can happen unless you approach each point very carefully with short leading questions. Otherwise your unspoken message is: 'You can trust what this witness says. I certainly do.'
"And be careful not to go outside the scope of the witness's direct, because the judge—especially Judge Mudrock—will cut you off before Strickland and Panzer even think of objecting.
"Third, the purpose of cross is not to attack the credibility of the witness unless doing it fits your case and you've got something worth using.
"So what is the main purpose of cross?" said Angus. "It's to let you testify. Cross is your opportunity to tell 'the rest of the story' your way so their witness has to agree that what you say is true. In other words, you want to use their witness to validate you as a reliable source of information whenever you can.
"That's a lot to accomplish in one cross-examination," said Maria.
"I'll say," said Mike, while Ernie nodded his head.
DON'T SHOOT YOUR OWN FEET
Angus smiled. "That's just the start," he said. "Next there are three basic cross-examination techniques you can use to pursue these goals.
"First is what's called a 'constructive cross,' when you use the witness you are cross-examining as your own to prove part of your case.
"Next is a 'destructive cross,' which you use to expose the holes in the witness' story, or even use the witness to testify to inconsistencies in the other side's case. But remember: The judge is not going to let you go beyond the scope of the witness's direct during your cross.
"The third approach is to attack the credibility of the witness with prior inconsistent statements, an undisclosed interest in the outcome of the case, or even a record of criminal convictions."
"Can you use all three techniques in the same cross-exam?" said Ernie.
"What do you think?" said Angus.
"I think you'd be shooting your credibility in both feet," said Mike.
"I think so, too," said Angus. "I've never heard of it being done anywhere except in Professor Warbler's law school examinations.
"But whatever you do, don't ridicule the witness or make fun of what he says or how he says it. Remember the old adage 'Sarcasm is the last weapon of the defeated wit.' The judge and the jury will not forgive you for needlessly humiliating a witness who is trying his best."
SHORT AND SIMPLE
"The most important thing to remember," said Angus, "is that on cross-exam you are the real witness. And there are some important techniques you need to master to make your 'testimony' effective.
"Ask only leading questions. Switch to nonleading questions on cross and you will instantly start losing control of the witness. It may take you some time to get it back.
"Ask short questions. Never ask the witness questions as if they were stand-alone pieces of baroque legalistic verbosity, which you will hear all too often in courtrooms throughout the country.
"Use simple language. We are all victims of traditional legal educations. We were so anxious to become professionals that in the first week of law school we were already sounding more like lawyers and less like real people. And the awful thing is, once we start talking like that, most of us never get over it."
Maria started to laugh. "You know what Sandra Panzer actually asked one of our witnesses on cross-exam? This is a collision case, and she said, 'What next, if anything, did you do with respect to the operation and control of the motor vehicle in question?' "
That's when Angus gave Maria, Mike and Ernie copies of a handout he distributes when he is invited to speak at law schools.
Stop trying to talk like lawyers. The problem with legalese is that it does not command instant understanding by ordinary people. That means it automatically makes us poor communicators—and communicating is what we're supposed to be doing for a living. It's a bad habit that most lawyers never shake. So start talking like real people again now.
|contact with||talk to, call, see|
|state whether||tell us|
|did a time come when you||did you|
|were you aware that||did you know|
|relative to||about, concerning|
Needless Tag Endings
|It's true, is it not, that ...||Isn't that true?|
|Isn't it a fact that ...||Isn't that correct?|
|In fact, didn't you ...||Right?|
|Are we correct in assuming that ...||That is correct, is it not?|
|Tell the ladies and gentlemen of the jury, if you would please ...||Isn't that not so?|
Useless introductions and needless tag endings may look like they make your questions more powerful, but the opposite is true. They make your questions weak by hiding what you really want in a pile of verbal clutter.
Use verbal headlines—topic sentences—when you want to change the subject: "Now let's jump forward 1½ years, Mrs. Williams, to the summer of 2009. Aug. 15 was the day the tungsten market collapsed, wasn't it?"
End on a High Note
Q: New topic, Mr. Jackson. You say you had no inside warning that Gaines Brothers was about to collapse?
A: That's right.
Q: You sold all your stock in Gaines Brothers on Oct. 23?
Q: For $600,000?
Q: Well over half a million?
A: That's right.
Q: Four days later those same shares of stock were worth less than $6,000?
Q: That was a 99 percent drop in value in four days?
A: That's right.
Q: But you say you had no inside warning from your friends at Gaines Brothers that the bottom was about to fall out?
A: That's right.
Q: You just made a lucky half-million-dollar guess?
Jim 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.