THE ART OF CROSS-EXAMINATION

by Gerald A. Klein

While direct examination may be the hardest - and most important - part of any trial, cross-examination is usually the most fun. Unfortunately, most lawyers do not cross-examine witnesses well and forget that the purpose of cross-examination is not simply to attack an adversary, but to strengthen your own case. The following eight steps will help you create effective cross-examination that will advance your case.

Step 1. Do I Need to Cross-Examine the Witness?

Many lawyers launch forth like lemmings jumping off a cliff and cross-examine witnesses without asking the question: do I need to cross-examine this witness? Some lawyers believe they are not doing their job if they do not ask at least some questions of a witness. But, often, cross-examination will add nothing to your case. If cross-examination of a witness does not help your case, then let the witness go without asking a question. Asking a few harmless questions of a witness only suggests to the jury you believe the witness is worth questioning. Asking no questions of a witness can minimize the importance of that witness in the juror's eyes, as you obviously did not feel the testimony was significant enough to challenge.

Witnesses who present only foundational facts should not be cross-examined. Likewise, even important witnesses, who are not likely to be shaken from their direct testimony, should not be cross-examined as you will only reinforce the testimony through your questions. Accordingly, before you open your mouth, evaluate whether a particular witness should be cross-examined at all or whether it makes more sense to move on.

Step 2. Determine Your Goals for the Witness.

In developing your cross-examination plan, determine what your goal is. Is the primary purpose of cross-examination to attack the witness's credibility? Is it your plan to have the witness concede key facts you will not be able to obtain from other witnesses? Is it your plan to have a particular witness confirm key elements of your own case? As Yogi Berra once said, "if you don't know where you are going, you will wind up somewhere else." Make sure you know where you are going.

If your goal is both to elicit important testimony from an adverse witness as well as destroy her credibility on other points, then elicit the helpful testimony before you have destroyed her credibility. Otherwise, you may undermine the helpful information you want from the witness.

Step 3. Make Sure You Have a Cross-Examination Plan.

Every cross-examination should be planned. There are a handful of lawyers who are so gifted, they can make up cross-examination as they go. More likely than not, you are not one of these lawyers. Usually, attorneys who "wing it" on cross-examination are ineffective - or worse - become victims of their own questions.

For the overwhelming majority of us, preparing cross-examination in writing is essential. At a minimum, you will need to prepare a written outline of the points you want to make and have ready citation to exhibits or transcripts for impeachment if you catch the witness in a lie. Jurors get impatient seeing lawyers fumbling through a transcript desperately trying to find a point of impeachment. Moreover, by the time the fumbling lawyer finds the impeaching point, jurors have often forgotten the purpose of the impeachment. Worse yet, if the attorney cannot find the point of impeachment while the jury is waiting, the attorney looks silly and the witness looks even more credible. Effective cross-examination requires the cross-examining attorney to be able to challenge an incorrect answer in a moment's notice.

In addition, effective cross-examination does not move from one point, to another point, and then back to a first point. Disjointed cross-examination comes off as scattered and confusing. The more you can tie cross-examination to particular subject matters in an organized fashion, the easier it will be for jurors to understand exactly where you are going and the easier it will be for you to make your point.

Step 4. Keep it Short.

In direct examination, we lay out a detailed story to present our case. Effective direct examination can last all day as the witness paints a detailed picture of the case through your questioning. In cross-examination, our goal is simply to undermine the other side's story or to confirm points in our story. Virtually every question you ask in cross-examination either makes a point or sets up the next question that will make a point. Meandering cross-examination that goes nowhere bores jurors and accomplishes nothing. The overwhelming majority of witnesses can be cross-examined in 30 minutes or less even in very complicated cases. Effective cross-examination makes a point quickly and keeps the jury engaged from the moment you ask your first question until you pass the witness for re-direct. Generally, the longer cross-examination goes on, the less effective it is.

Step 5. Know When to Stop.

Sometimes a witness is so bad, it is tempting to keep asking question after question to bury the witness deeper and deeper into a hole. Many inexperienced lawyers believe there can never be too much cross-examination so long as the witness is being torn apart for all to see. Unfortunately, the cross-examining attorney can cross the line from effective advocate on top of the case to a brutal bully who does not know when to quit. Once you know an adverse witness has been destroyed, end the cross-examination. Continuing to jump on the witness's lifeless body will only make you look like a thug.

Step 6. Use Only Leading Questions.

The overwhelming majority of effective lawyers hold one principle of cross-examination dear to their hearts: never ask a question if you do not know what the answer will be, unless you can impeach any unhelpful answer. The concept of cross-examination is that the lawyer is supposed to control the witness and force the witness to answer questions harmful to an adversary's case. When you ask an open-ended question, or a question where you do not know what the answer will be, the witness may hit that question out of the ballpark.

The only exception to asking a question where you do not know what the answer will be is where no answer could possibly help the witness. For example, if you asked a doctor whether he knew he left the sponges in the plaintiff before closing the plaintiff up, the doctor has two choices: (1) I knew the sponges were there but I decided to close anyway; or (2) I forgot to remove the sponges. Either answer helps your case. There is no "defense friendly" answer to that type of question.

When asking leading questions, avoid double negatives. For example, it is sufficient to ask the witness whether he signed the contract to get the answer of "no." Asking a question like, "You didn't sign the contract" is confusing, especially when the witness says "no" in response to the question. The cleaner the question, the easier the answers are to understand.

Step 7. Destroying the Witness's Credibility Through Cross-Examination.

There are numerous ways to destroy a witness's credibility. Each approach depends upon the witness and what you hope to accomplish.

• Attack the Witness's Ability to Perceive.

A witness's testimony is only as strong as his ability to perceive the events relevant to the testimony. Where a witness "has no dog in the fight," it is often impossible to make the witness sound like he is untruthful. Where you are confronted with a seemingly honest witness with no ax to grind who has damaging evidence to present, attack the witness's ability to perceive the events at issue. There are numerous ways to attack a witness's ability to perceive. For example, it is possible to show the witness's eyesight is poor or line of vision was obstructed. It is possible to show the witness was not present when certain events occurred. To see a classic demonstration of this type of cross-examination, rent My Cousin, Vinny (1992).

• Attack Reliability.

Sometimes, a third-party witness may be truthful but her testimony is not reliable. For example, a witness who previously made mistakes regarding dates, times, and places may be attempting to tell the truth, but there is a question as to whether the witness can accurately testify to events. In this type of approach, the intent is not to show the witness is lying but that the witness cannot be counted upon to testify accurately to what occurred. This is one of the rare cases where the cross-examining lawyer may want to pile on a number of seemingly innocuous mistakes, which, by themselves are meaningless. For example, you can show the witness got the following facts wrong. She mis-identified the model of the car. She was wrong about the date of the accident. She identified the plaintiff as being over six feet tall when he is only five feet, six inches. She testifies there were three people in plaintiff's car when there were only two people in it. None of these mistakes has anything to do with whether plaintiff ran a red light. However, the repeated mistakes in such a short period of time should cause a jury to question whether this witness can present reliable testimony.

This type of attack is especially effective with expert witnesses who make mathematical errors or get other key facts wrong. In fact, attacking expert witnesses requires a separate article, as there are so many ways to attack them.

• Attack Truthfulness.

Often, the most effective attack on a witness is an attack on the witness's truthfulness. Where a witness is a proven liar, even the jury instructions state the entire testimony of the witness may be disregarded. Jurors are very unforgiving of witnesses they find not to be truthful - especially in the case of party witnesses. Where you can show a party is lying, you may prevail on the case even if other elements of the case are weak.

The most effective attacks on truthfulness come from showing a witness has testified inconsistently under oath. Thus, where testimony at trial is contradictory to testimony at deposition, such impeachment can be devastating to a jury's willingness to believe that witness. Unfortunately, lawyers often obsess over minor - even inconsequential - points of impeachment. For example, showing the witness testified a meeting happened on Tuesday, instead of Wednesday, is a silly point of impeachment if the actual day of the week is not an issue in the case. Pointing out these types of inconsistencies only make your cross-examination look weak. If your purpose in impeaching a witness is to attack truthfulness (as opposed to reliability of the witness to recount facts), make sure each point of impeachment is strong and directly related to the key issues in the case. Impeaching on minor points to prove the witness is not truthful is ineffective and counter-productive.

Step 8. Remember the Courtroom is Theater.

Virtually every one of your jurors has seen a courtroom drama. Jurors have come to expect that one of the fun parts of watching a trial is watching effective cross-examination from a skilled attorney. Do not disappoint your jury. Arrange your cross-examination to make sure it has maximum dramatic effect - without being overly dramatic. For example, when a witness under cross-examination admits she previously provided false testimony, let the answer quietly hang in the air before moving to your next question. Let your jurors absorb what they just heard. The silence can often create more impact than the answer itself. Keep track of your voice tone. Make sure the jury knows you do not believe the witness, without being condescending or snippy.

As with every component of the case, consider using technology to help jurors understand what the testimony is. While you and the witness might easily understand what paragraph seven of the contract says and how it contradicts the witness's testimony, jurors may start daydreaming if they cannot see the actual language of paragraph seven. Make sure jurors can see important demonstrative evidence or key documents, so they understand where you are going with cross-examination.

Assuming you already incorporate technology into your trial presentation, play inconsistent videotape deposition excerpts, rather than just reading the testimony from a cold transcript. It is much more interesting for jurors to hear a witness testify inconsistently with testimony they heard just a moment before than to listen to a dry reading of what was said.

CONCLUSION

Effective cross-examination can make the difference between winning and losing a trial. Although cross-examination can be the part of trial that is the most fun for experienced trial lawyers, preparing good cross-examination takes a lot of thought and hard work.

This article first appeared in The OCTLA Gavel, Fall 2010

Legal Research & Writing Services--Sample Documents & Filings

Appellate Briefs:   Sample Appellate Brief.

One of the most demanding research and writing projects a lawyer can face is the appellate brief.  This is where technical craft (command of style, citation conventions and local court rules), comes together with exhaustive research, thorough analysis and cogent writing to create a persuasive brief.  I filed the sample brief in an appeal to the New Hampshire Supreme Court on behalf of a municipal corporation.

Trial Brief and Memoranda:   Sample Trial Brief 1.   Sample Trial Brief 2.

Frequently a court will ask counsel to brief troublesome legal issues in advance of trial.  Often the same type of filing is required in support of a dispositive motion.

Record Reviews, Fact Summaries, Argument Preparations:     Sample Arbitration Summary.

Court cases are basically stories about people.  The advocate's job is to make the client's story as compelling and persuasive as possible from the client's point of view.  Success always requires meticulous review and methodical summary of the facts, but often there isn't enough time in the day to allow for this.  Even so, it is critical.  Only after gaining complete control of the facts through a painstaking review and summary can the attorney weave them into a persuasive presentation.  I submitted the sample fact summary in advance of an arbitration panel hearing in a personal injury case.

Opinion Letters:   Sample Opinion Letter.

Even the most sophisticated clients often need written advice about what to do.  Regardless of the form such written advice takes, it always must explain the basis for the opinion and provide clear direction in plain language.  The sample letter responded to a Police Chief's concern about suspending a Dectective for violation of a Department rule. 

Pleadings:  Sample Pleading.

All pleadings, regardless of venue or jurisdiction, must meet the same test--all of the elements of the action or defense must be stated for every count or claim.   This sample pleading (an insert to a pre-printed court form) was the initial filing in a personal injury case.

Complex Transaction Documents:

For many years I spent much of each day preparing custom documents for complex commercial transactions.  These ran the gamut from purchase and sales agreements and deeds to promissory notes, mortgages, and other  highly technical commercial loan documents.  If you're facing a project where this kind of thing is required, and it's outside your daily comfort zone, contact me and let's discuss it.

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NOTE:  I have changed the dates, the locations, the names of the parties, and all other identifying information in all of the sample documents, whether or not they are public records.  I have taken this precaution to protect not only the privacy but the sensibilities of those involved. The substantive content of the documents remains unchanged.

IMPROVING CROSS-EXAMINATION OF EXPERT WITNESSES

Published in Los Angeles Lawyer, April 2005

In many respects, the cross-examination of an expert witness is the same as for other witnesses. Some basics include: Be brief…Do not quarrel with the witness…Never ask a question to which you do not already know the answer…Avoid one question too many…and so on. However, there are some important differences.

Preparation

Preparation is even more important when dealing with an expert witness. Your research should include:

• Has this witness written or testified previously with inconsistent conclusions to those being taken in your case?

• Does the expert always testify for the same side? An impartial expert can consistently apply his trade on behalf of both plaintiffs and defendants.

Attacking the opposing expert’s theory or conclusions is much more difficult than attacking their qualifications. To prepare for the substance of the opinions, you should be schooled by your (equally competent) expert. Your expert can educate you as to weaknesses and flaws in the opposing position, as well as the jargon necessary to understand what is being said. Your expert may also know information about your opposing expert that you would otherwise have difficulty learning.

Your cross-examination plan should emphasize quality over quantity. The more qualified and/or experienced the expert, the less likely that you will gain much from a more lengthy cross. The reason is that the expert has years of training and experience from which to draw in answering your questions. A wide-ranging cross is more likely to give the witness a new chance to demonstrate his expertise or explain his views. Particularly with complex subjects, focus on your opponent’s big problems that you know you can demonstrate.

What Questions to Ask

Your deposition should have uncovered the assumptions upon which your opposing expert relies. These assumptions often control the result the expert reaches, and will likely be the centerpiece of your examination. Your ultimate goal is to provide the jurors with the basis to argue against the expert’s conclusions by showing that they are based on assumptions that the jury independently rejects. The jury will generally find it much easier to critique the assumptions than to challenge the expert’s science or techniques.

All cross-examination is better when done with short and simple sentences. Add only one new fact or point with each question. This makes it difficult for the witness to disagree without appearing obstinate. Short questions provide less room for the witness to squirm away from your control, or provide explanations that you would rather not hear.

The use of questions that do not contain extra details is particularly important when dealing with the complex subjects that experts address. Experts are usually careful, and understand the importance of precision. Avoid questions containing absolute words (such as “always” or “never”), or unnecessary adjectives (such as “clearly” or “rapidly”). Otherwise, the expert may take advantage of your question’s exceptions or subtleties to avoid answering in the desired way.

Most questions should be leading, meaning the question can be answered with a “yes” or a “no”. This has the practical effect of having the attorney serve as a witness, with the real witness ratifying the attorney’s testimony. However, as long as you have a good deposition transcript to support you, some questions are better left open for the expert to complete. Some examples, all of which ask for specific objective data, include:

• How much money did you make last year testifying for other plaintiffs?
• Of the thousands of medical journals published around the world, how many of them have asked you to publish the opinions you are expressing in this case?
• When is the last time you treated a real patient?

Lawyers often try to impeach an expert with the fact that he has been paid for his work. This backfires as often as it works. For example, if the expert has put significant time and cost into the matter, does this indicate thoroughness rather than bias? If the expert has a high hourly rate, does this mean that she is a liar, or rather that she is eminently qualified and in high demand? The impeachment from fee-related questions is minor compared to the witness’s confidence and preparation on other matters and the effectiveness of the rest of your cross-examination.

Some experts attempt to demonstrate their superiority by using technical jargon. When dealing with a pompous expert, you must know the expert’s lingo. Get the expert to agree with your alternative explanation that uses everyday language. Doing this will demonstrate the expert’s arrogance, and will raise your credibility with the jury.

The Order of Questions

You should generally begin and end your cross-examination with your strongest points. Otherwise, use the following sequence:

Practically every opposing expert will have opinions that support your case. This corroborating testimony will have a stronger impact than the same testimony from your side. Therefore, start your examination with the areas or themes that will allow you to turn the opposing expert into your witness. At the beginning, your opposing expert will be less hostile.

Next, dilute the opposing expert’s opinions by seeking agreement regarding possible alternative explanations that favor your theories. A jury will often give credit to a mere possibility, even if this possibility may not be probable.

After the corroborative portion of the cross-examination, ask the more destructive and critical questions. However, do not be aggressive, as this might cause the jury to be sympathetic towards the expert. You should attack an expert only when you believe the jury will see the witness as being unfair, arrogant, or disrespectful of the truth.  Even then, you must never cross the lines between tough and mean, or confident and arrogant.

Experts often make a huge difference in the trial. Additional attention to the expert portion of your case is usually worth the effort.

David Nolte is a principal at Fulcrum Financial Inquiry LLP, with 30 years of experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.

David Nolte is a principal at Fulcrum Financial Inquiry LLP with 30 years of experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness. 

Posted in Damage Analysis

PT: Witness Cross-Examination Plan

	Both Sides Witness Cross-Examination Plan: THE SKILL It is your plan as to how to cross-examine an opposing party or a witness.  The bases for challenging the witness's credibility will be obvious from the material in the file and the library.
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Witness Cross-Examination Plan: THE SKILL	It is your plan as to how to cross-examine an opposing party or a witness. The bases for challenging the witness's credibility will be obvious from the material in the file and the library.
Witness Cross-Examination Plan: WITNESS CREDIBILITY	The bases for challenging the witness's credibility will be obvious from the material in the file and the library.

Jury instructions

From Wikipedia, the free encyclopedia

The examples and perspective in this article may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (December 2010)

Jury instructions are the set of legal rules that jurors ought follow when deciding a case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury. They are often the subject of discussion of the case, how they will decide who is guilty, and are given by the judge in order to make sure their interests are represented and nothing prejudicial is said.

Contents   [hide]  1 United States 1.1 Jury nullification instructions 2 References 3 External links

United States[edit]

Under the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts. The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true. Put another way, "If you believe A (set of facts), you must find X (verdict). If you believe B (set of facts), you must find Y (verdict)." Jury instructions can also serve an important role in guiding the jury how to consider certain evidence.^[1]

Forty-eight states (Texas and West Virginia are the exceptions) have a model set of instructions, usually called "pattern jury instructions", which provide the framework for the charge to the jury; sometimes, only names and circumstances have to be filled in for a particular case. Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will be often be instructed not to draw any negative conclusions from that decision. Many jurisdictions are now instructing jurors not to communicate about the case through social networking services like Facebook and Twitter.^[2]

Several studies have discovered that subjects who received no jury instructions comprehended the law better than subjects who received pattern instructions. Jurors retain low comprehension of the most fundamental aspects of their roles. For instance, scholarly studies and anecdotal evidence suggest that jurors conflate reasonable doubt with the civil standard of preponderance of the evidence.^[3]

In one study, citizens willing to impose the death penalty were presented in 2 experiments with 4 sets of instructions (i.e., baseline instructions, instructions used at trial, instructions revised according to Eighth Amendment to the U.S. Constitution holdings, and model instructions written in nontechnical language). Results demonstrated high confusion with the trial instructions, little improvement with revised instructions, significant but case-specific improvements with model instructions, and a strong relationship between miscomprehension and willingness to impose death.^[4]

In California, jury instructions were simplified to make them easier for jurors to understand. The courts moved cautiously because, although verdicts are rarely overturned due to jury instructions in civil court, this is not the case in criminal court. For example, the old instructions on burden of proof in civil cases read:^[5]

Preponderance of the evidence means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.

The new instructions read:

When I tell you that a party must prove something, I mean that the party must persuade you, by the evidence presented in court, that what he or she is trying to prove is more likely to be true than not true. This is sometimes referred to as 'the burden of proof.'

Jury nullification instructions[edit]

In one study, results gathered from 144 six-person juries indicated that when juries are in receipt of jury nullification information from the judge or defense attorney they are more likely to acquit a sympathetic defendant and judge a dangerous defendant more harshly than when such information is not present or when challenges are made to nullification arguments.^[6] In another study, three nullification instructions varying in explicitness as to nullification were combined with three criminal cases to yield a 3×3 factorial design. Forty-five six-person juries (270 subjects) were randomly assigned to the nine experimental groups. The results showed that juries given explicit nullification instructions were more likely to vote guilty in a drunk driving case, but less likely to do so in a euthanasia case. The third case, which dealt with murder, did not show any differences due to instructions.^[7]

It has been argued that by effectively and persistently offering juries instructions that cannot be understood, judges regularly nullify the law.^[8]

Instructions permitting jury nullification has sometimes been criticized as promoting chaos, in that it "conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny." A rebuttal to this is that a jury instruction about jury nullification "would transform the judicial process by providing a more rational basis for jury deliberation and decision making. In particular, it would allow jury deliberation to be an open process in which extrajudicial biases are aired and confronted. Further, those communities whose members are increasingly estranged from the criminal justice system's decision-making process will benefit indirectly from greater participation and, in turn, from power over the kinds of cases prosecuted. In sum, contrary to the argument that a nullification charge is an invitation to anarchy, such a charge could help to control the anarchy that has already gripped much of the system."^[9]

References[edit]

1. ^ Overview - Federal Jury Instructions & Federal Evidence
2. ^ Ensuring An Impartial Jury In The Age Of Social Media, Duke Law and Technology Review (2012), http://dukedltr.files.wordpress.com/2012/03/stevefinal_31.pdf
3. ^ John P. Cronan (2002), Is Any of This Making Sense? Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension 39, American Criminal Law Review
4. ^ Wiener, Richard L.; Pritchard, Christine C.; Weston, Minda (August 1995), "Comprehensibility of approved jury instructions in capital murder cases", Journal of Applied Psychology (Journal of Applied Psychology) 80 (4): 455–467, doi:10.1037/0021-9010.80.4.455
5. ^ Spelling It Out in Plain English
6. ^ Irwin A. Horowitz (December, 1988), The impact of judicial instructions, arguments, and challenges on jury decision making 12 (4), Law and Human Behavior, ISSN 0147-7307
7. ^ Irwin A. Horowitz (March, 1985), The effect of jury nullification instruction on verdicts and jury functioning in criminal trials 9 (1), Law and Human Behavior, ISSN 0147-7307
8. ^ Saks, Michael J. (1992-1993), Judicial Nullification 68, Ind. L. J., p. 1281
9. ^ David N. Dorfman (1995), Fictions, Fault, and Forgiveness: Jury Nullification in a New Context

External links[edit]

• Federal Jury Instruction Resource Page Collecting model or pattern federal civil and criminal jury instructions for trial courts by jurisdiction (where available) and subject matter.
• Jury Instructions in Insurance-Coverage and Insurance Bad-Faith Cases^{[dead link]}
• Sample California Civil Jury Instructions
• Criminal Pattern Jury Instructions, 10th Circuit U.S. Court of Appeals.

[hide] v   t   e Jury-related articles Primary articles Jury trial   Grand jury (Indictment)   Jury instructions   Specific finding   Deliberation   Hung jury   Jury nullification   Jury tampering   Jury research   Jury stress Jury selection Change of venue   Death-qualified jury   All-white jury   Peremptory challenge   Strike for cause   Scientific jury selection   Struck jury Specific jurisdictions Canada   Eng