McElhaney on Litigation
Juries don’t like it when you cross over from tough to just plain nasty
Posted Apr 1, 2009 7:10 PM CST
By Jim McElhaney
Last night’s bar association program with Angus and Judge Standwell was on cross-examination.
Professor Vince Warbler was not on the program, but he was out in the lobby selling copies of his cross-examination book, Killer Kross. Angus and the judge knew the bar association had refused Warbler permission to hawk his book in the halls, but they decided not to say anything about it.
Right at 7:30, Angus stood up and said, “What’s the point of cross-examination?”
At first there were no responses. But then Marcus Garcia, a recent law school graduate, raised his hand and said, “The purpose of cross-examination is to let the advocate employ the essential legal, tactical and verbal skills that will virtually disembowel the mendacious adverse witness right in the middle of trial.”
“Where did you get that?” said Angus.
“It’s on the back cover of Professor Warbler’s book,” said Marcus.
“Well, he sold one copy,” said someone in the back.
Angus went on. “Like any trial technique, the purpose of cross-examination is what you can use it for,” he said, going to the blackboard. “So let’s have your ideas of what you can do with cross.”
In a few minutes the group came up with an interesting list:
• Make the judge and jury want you to win.
• Use the witness as your own to develop facts that help your case.
• Expose the witness’s bias for your opponent.
• Show the witness’s prejudice against your client.
• Demonstrate the witness’s lack of firsthand knowledge.
• Create a list of what the witness ought to know but doesn’t.
• Impeach the witness with a prior inconsistent statement.
• Link impeaching material to the witness’s testimony that hurts your case the most.
“Before we go any further,” said Angus, “what’s the one big idea that links all these uses of cross together?”
No hands went up.
“Is there anything on the cover of Professor Warbler’s book that talks about this?” said Angus.
“Not that I can see,” said Marcus.
“The big idea is persuasion,” said Angus. “Cross-examination is a key part of what makes a persuasive case. Every thing you do in trial—especially on cross-exam, which constantly tempts you to do things that can hurt your case—must pass this test: Will this make my case more persuasive?”
“Judge,” said Angus, “what are your thoughts on this?”
“As someone whom lawyers are always trying to persuade,” said Standwell, “I’d like to talk about what lawyers constantly do on cross that hurts their cases.
“Like Glen Boudreaux, a partner at Jackson Walker in Houston, says, ‘A trial is not a legal puzzle; it’s a morality play.’ Judges and juries want the good guys to win. And the understandable human reaction to a nasty, vituperative, vicious cross-examiner is that he must have been hired by a nasty, vituperative, vicious client.
“It means you’ve got to be someone the jury likes—even on cross-examination—which a lot of lawyers have a hard time doing,” said Judge Standwell.
“You can be firm. You can be insistent. You can be tough when it’s called for. But you’ve got to be fair, polite and respectful—throughout the case and especially on cross.”
“But you have to control the witness,” said Billy Hightower. “The judge isn’t going to do it for you, so how do you handle a difficult witness and still come across like someone the jury would like to know?”
“Pardon me,” said Judge Standwell. “You grow up on a ranch?”
“You know the answer to that, Judge Standwell,” said Billy. “Outside Ruidoso, not five miles from where you grew up.”
“That mean yes?” said the judge.
“That’s right,” said Billy.
“Learn to ride a horse?” said the judge.
“That’s something everybody does in that part of the country,” said Billy.
“Including you?” said Standwell.
“Short reins help control a headstrong horse?” said Standwell.
“You could say that.”
“That mean yes?” said Standwell.
“Yes,” said Billy.
“Think it might work with witnesses?” said Standwell.
“That’s amazing,” said Billy. “You were absolutely polite but in total control. It made me look like a jerk who was trying to give you a hard time.”
MASTERING THE CROSS
Judge Standwell smiled. “It’s a set of verbal habits good cross-examiners have to develop,” he said. “Learning how to ask very short, fair, leading questions that call for yes or no answers. It’s counterintuitive for most lawyers, who seem to think that long questions are powerful.
“That’s wrong. Long questions are weak. They invite long answers.
“It takes practice, but anybody can master the technique. Until you do, you will only be a mediocre cross-examiner.”
Then Maria Archuleta said, “What if you ask the witness a yes or no question, but he gives you a why or why-not answer? Last week I asked Dr. Marty Pidcoe whether he gave the plaintiff in the case I was defending a stress test. It was a simple yes or no question. But he went on for nearly 15 minutes explaining why he felt it would have been inappropriate. I couldn’t shut him up!”
“Angus,” said Judge Standwell, “what would you do?”
“Take the blame,” said Angus. “Dr. Pidcoe is a frustrated wannabe lawyer who loves to testify in court—and talks about whatever he feels like on cross-examination, no matter what the question calls for. Witnesses like that are loose cannons that can do a lot of damage to an otherwise effective cross.
“And if you ask the judge to instruct the witness to answer the question, the ruling is likely to be, ‘The witness may explain his answer.’ ”
“But you can literally stop the witness cold by interrupting him with an apology, like this:
“ ‘I’m sorry, doctor, but I meant to ask if you had done a stress test on Mrs. Reynolds. Would you tell us whether you did that, please?’ ”
“But what if Dr. Pidcoe goes on anyway?” said Ernie Romero.
“Keep your cool and politely interrupt him again,” said Angus. “ ‘Pardon me, doctor, but did you do a stress test on Mrs. Reynolds?’
“Juries don’t like witnesses who won’t answer simple questions.”
“Neither do judges,” said Standwell. “If the witness doesn’t give a straight answer at this point, I usually say something like, ‘Dr. Pidcoe, you are a witness in this case—not one of the lawyers. It’s your job to answer questions—not argue the case. Do you understand?’ ”
“What I want to know,” said Michael Sanders, “is how you link impeaching material to the part of the witness’s testimony that hurts you the most?”
“Just because you put one fact next to another doesn’t mean they are related by cause and effect,” said Angus. “But if it seems logical that they are, the judge and jury will link them for you.
“Say you’re representing a 72-year-old retired grade school teacher, Edna Johnson, who suffered a concussion and broken hip when she slipped and fell on some spilled mayonnaise in a supermarket.
“The store calls another shopper, Harry Frankford, who says Ms. Johnson ignored both an announcement over the loudspeaker system and a sign at the end of the row warning about the spilled mayonnaise.
“On cross-examination you develop a series of little holes in Mr. Frankford’s testimony, showing he wasn’t standing near Edna Johnson when he heard the warning and when he saw the only sign the store had put up.
“Then it’s time for the link.
“ ‘But even so, Mr. Frankford, you’re sure Edna Johnson heard that warning and saw that sign?’
“ ‘Absolutely. She couldn’t have missed them.’
“Looking puzzled, you pause for a moment. Then you ask:
“ ‘Mr. Frankford, are you some kind of kin to the manager of that Z-Mart grocery store?’
“ ‘Yes, but what does that have to do with it?’ says Frankford.
“You say, ‘That’ll be up to the jury, Mr. Frankford. No further questions.’ ”
Judge Standwell ended the evening with a warning: “Watch out for mousetraps.”
“What do you mean?” said Marcus Garcia.
“A mousetrap is set when the other side seems to forget to cover something on direct that you were waiting to hammer the witness on with your cross,” said Judge Standwell.
“You set off the trap when you raise the topic yourself. That’s when you hear for the first time all kinds of information you didn’t get in discovery that really hurts your case.”
“So how do you avoid mousetraps?” said Marcus.
“The best way is to be careful in discovery,” said the judge.
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.