"Cross-Examination Choices"
Michael ended his cross-examination with a flourish. He had caught the witness – the defendant’s service manager – in a clear contradiction. The witness was totally unaware of what was happening until Michael snapped the trap shut by putting a blowup of the service manager’s monthly report on the big screen that everybody – even the witness – could see.
One last question and then Michael announced he had nothing further. He walked back to the counsel table where he wrote a little note to his lead counsel, Beth Golden, and slid it across the table to her. “How’d you like that cross?” it said.
Michael was shocked when Beth wrote “We’ll talk about it later” on the pad and pushed it back to him with a tight-lipped look on her face.
It was Michael Torrent’s third trial sitting second chair to Beth Golden, and the first time he had done anything besides routine direct examination.
Out in the hall, Beth went straight to the point. “Why’d you attack the service manager?” she said.
“Because he’s the defendant’s witness,” said Michael. “What’s the matter? Didn’t you like the way I did the impeachment?”
“You did it the right way if you were trying to attack the witness,” said Beth. “My problem is why did you do it?”
“Because it was just too good an opportunity to pass up,” said Michael.
“Oh?” said Beth. “Let me ask you a question. Does the service manager strike you as the kind of person the jury just naturally hates?”
“Not really,” said Michael. “He seems like a pretty good guy. It’s just that he’s the defendant’s witness and….”
“And realistically,” Beth said, “how much damage do you figure he did to our case with his direct examination?”
“Not much, I guess,” said Michael. “He really just testified to some ordinary stuff.”
“So he wasn’t what you’d call a key witness,” said Beth.
“No,” said Michael.
“And who do you think the jury is going to identify with – you, the lawyer – or the nice guy who’s just a service manager at an automobile dealer?”
“Not me, I guess,” said Michael.
“So even though you caught him in an inconsistency, who do you think won that round?”
“They did, I guess,” said Michael, looking crestfallen.
“I almost hate to tell you,” said Beth, “but we’ve also got another problem.”
“What’s that?” said Michael.
“You were so anxious to catch the service manager in your trap, you forgot to ask him about what our plaintiff’s husband said when he brought his car in to be fixed,” said Beth. “And after Judge Mudrock let the defendant back out of its admission, the service manager is the only direct proof we’ve got that the defendant knew the plaintiff’s car had a leaky gas tank. All the rest is just circumstantial evidence and an ambiguous entry on the defendant’s service order.”
“Well, we’ll put him back on the stand as a rebuttal witness,” Michael said.
“To rebut what?” said Beth. “You can’t call a rebuttal witness just because you forgot to prove part of your case. You’re just supposed to use rebuttal witnesses to rebut something the other side brought up – not fill in the blanks. We’d probably be better off asking the court to let us reopen our cross-examination before the defense does its redirect.”
Which is exactly what happened. Everyone was up at sidebar when Beth asked Judge Mudrock if she could ask a few questions that her young co-counsel had inadvertently omitted. Michael looked humiliated, which may have been why the judge said, “Well, I was a young lawyer, once.” And let Beth fill in the holes Michael had left.
That evening they talked about it some more. “Look, Michael,: Beth said, “don’t take it too hard. You haven’t done anything that thousands of other lawyers don’t do every day without giving it any thought. You treated the witness like Mallory treated Mt. Everest. You attacked him because he was there. It was like you figured that if the defense thought it was worth their while to put him on the stand, it was worth your while to go after him with a destructive cross-examination.”
“Well, I certainly didn’t want to give the jury the impression that we agree with whatever their witnesses say, just because they don’t look like they’re creatures from the black lagoon.”
“Wait a minute,” said Beth. “Just because you don’t cross-examine a witness doesn’t mean you’re saying you agree with all of his testimony.”
. . .
“But you’re dodging my point, which is something you’ve got to understand,” said Beth. Everything you do in the cross-examination of any witness has to fit your theory of the case, or you don’t do it. And attacking the credibility of the service manager did not fit our theory of the case – it got in the way.
. . .
“There are some things that you aren’t going to do, no matter how tempting they may seem.
“First, the purpose of cross is not to make the witness’s testimony on direct examination any better. You are not a part of the opponent’s trial team and it’s not your job to improve their case. So don’t start out cross saying, ‘There are just afew things I’d like to clear up in your direct examination.’ That says you agree with all of the witness’s testimony except for a few little picky details – the rest is fine. Even worse, if you keep repeating that mantra about ‘a few things you’d like to clear up,’ you’ll start thinking that’s what you’re supposed to do.
“Second, the purpose of cross-examination isn’t to ask the witness for information – to tell you things that you didn’t know. The purpose of cross is to let you testify – to tell your side of the witness’s story so that the witness has to agree that what you say is true.
“How do you do that? Sift through the different techniques from all of the books and lectures and trial demonstrations and you will find three basic choices:
“First, do a constructive cross-examination – have the witness give some useful testimony that helps your case instead of trying to tear down what he said on direct.
“Second, have the witness validate your testimony, demonstrating that you’re actually a better source of information than he or she is.
“Third, attack the witness’s character and integrity head-on – which is usually a mistake unless it is essential to your theory of the case. It typically involves a personal war between you and the witness in which the judge and jury take the witness’s side.”
“I hear you,” said Michael, “and I don’t think I actually attacked that service manager’s character.”
“No?” said Beth. “Maybe it was when you said, ‘Were you lying then or are you lying now?’ that I got the wrong impression.”
“Anyway, let me give you an example of a constructive cross-examination. Say you’re representing a woman whose back got seriously injured when the defendant’s 6,500-pound sport utility vehicle rear-ended her while she was waiting at a red light. Liability is not a problem – but medical causation is. Her orthopedic surgeon says three discs in her lower spine were ruptured by the impact. But the defendant’s expert says her condition was caused by a progressive arthritic degeneration of the spine, and the wreck had nothing to do with it.
“Should you attack the defendant’s doctor’s opinion? Your doctor has already done a fine job of giving his evaluation. Besides, your plaintiff used to work in a water-meter factory, machining 30-pound brass castings on a grinding table until the crash, and she’s been unable to work ever since. So why give the defense doctor another chance to explain his opinion when you can bring out a lot of helpful things instead?”
“Like what?” said Michael.
“Like the defense doctor agrees that the plaintiff is seriously disabled and there is no way she could fake it. She is unable to bend forward more than 15 or 20 degrees despite three operations on her back. She has to take heavy doses of painkillers that make it impossible for her to drive or operate any kind of machinery. And because of her condition it would be virtually impossible for her to ever work as a machinist again.
“And while you’re developing all this good information, the doctor is waiting for you to go after his opinion concerning the cause of your plaintiff’s condition. So he is agreeing with things he has no argument with anyway. But after you have painted the picture of a woman whose back is in terrible shape, instead of attacking the doctor’s ideas about arthritic degeneration, you just stop and say, ‘Thank you, doctor. Your Honor, we have no further questions.’ “
“But won’t the defendant just go back to his doctor’s opinion on redirect?” said Michael.
“They’ll probably try, but it shouldn’t work – first, because they’ve already covered it, and second, because it’s outside the scope of the doctor’s cross,” said Beth.
“Then why wasn’t the cross-examination outside the scope of direct?” said Michael.
“Because the severity of her condition, the futility of further surgery, her pain, the effects of her medication, and the limitation on her body movements all relate to his knowledge of her medical condition and his ability to evaluate it. It’s all legitimate preliminary information – you just never take it any further.”
Michael looked astonished. “How’d you know all that stuff?” he said.
“That cross was part of a case I had,” Said Beth. “I prepared that response so I could defend my cross-examination if the defendant tried to attack it. Always assume that your opponent will try to do something to stop an effective cross. And because you can’t count on quick thinking to give you a good answer to their objection – you’ve got to prepare in advance.”
“Okay,: said Michael. “What about the next category – getting the witness to validate your testimony. Isn’t that just a fancy way of saying you’re attacking the witness head-on?”
“Nope,” said Beth. “The two are entirely different. One shows that something the witness said is incorrect. The focus is on what was said – not on who said it. The other is a personal attack on the honesty and integrity of the witness. It’s the difference between ‘I don’t know if I agree with what you said,’ and “You’re a morally corrupt congenital liar who’d sell his grandmother’s bones for a nickel.’
“Instead of making an outrageous attack, the idea is to use the witness to validate you as a reliable source of information – someone the jury can trust to tell the truth.”
“Oh, come on,” said Michael, “isn’t that carrying cross-examination a little far? ‘Isn’t it true, Mr. Abernathy, that I’m a better witness than you are?’ Who’s going to agree with that?”
“You don’t use a question to tell the jury what to think – you show them,” said Beth. “You show the witness what she said on direct. You show her what she said in her letter or her report or her deposition and she agrees or it’s obvious you’re right – she said it different the first time than she did today. That simple process shows the jury that you’re more careful and accurate than the witness is.”
“I wish it were as easy as you make it sound,” said Michael.
“It is if you watch how you do it,” said Beth. “First, remember you’re the cross-examiner. You – not the witness – decide what you’re going to talk about. You’re the one who gets to pick every disagreement you have with the witness’s testimony. Since you’re the one who gets to pick the fights, you should only pick ones you know you’ll win. And you get to say everything the way you like with simple leading questions.
“Whether the witness was wrong about something important is only part of the test for whether you select the topic. Even more important is how clearly and simply you can demonstrate that you are right and the witness was wrong. It doesn’t matter how right you are if you can’t prove it.
“One of the nice things about this approach is that you can be thoroughly pleasant about how you point out the witness’s mistakes and contradictions. It not only makes it easier for you to do the cross-examination, it makes it much easier for the jury to realize that every time you bring up a new topic, you’ve got the correct answer right in your hand.”
“Okay,” said Michael. “What about the third category – Operation Trial Storm?”
“You already know the answer to that one,” said Beth. “There comes a time when you have to actually attack the witness. But two warnings: First, be sure you really have to do it. Second, remember what Irving Younger said: ‘Cross-examination is a commando raid – not the invasion of Normandy.”
One last question and then Michael announced he had nothing further. He walked back to the counsel table where he wrote a little note to his lead counsel, Beth Golden, and slid it across the table to her. “How’d you like that cross?” it said.
Michael was shocked when Beth wrote “We’ll talk about it later” on the pad and pushed it back to him with a tight-lipped look on her face.
It was Michael Torrent’s third trial sitting second chair to Beth Golden, and the first time he had done anything besides routine direct examination.
Out in the hall, Beth went straight to the point. “Why’d you attack the service manager?” she said.
“Because he’s the defendant’s witness,” said Michael. “What’s the matter? Didn’t you like the way I did the impeachment?”
“You did it the right way if you were trying to attack the witness,” said Beth. “My problem is why did you do it?”
“Because it was just too good an opportunity to pass up,” said Michael.
“Oh?” said Beth. “Let me ask you a question. Does the service manager strike you as the kind of person the jury just naturally hates?”
“Not really,” said Michael. “He seems like a pretty good guy. It’s just that he’s the defendant’s witness and….”
“And realistically,” Beth said, “how much damage do you figure he did to our case with his direct examination?”
“Not much, I guess,” said Michael. “He really just testified to some ordinary stuff.”
“So he wasn’t what you’d call a key witness,” said Beth.
“No,” said Michael.
“And who do you think the jury is going to identify with – you, the lawyer – or the nice guy who’s just a service manager at an automobile dealer?”
“Not me, I guess,” said Michael.
“So even though you caught him in an inconsistency, who do you think won that round?”
“They did, I guess,” said Michael, looking crestfallen.
“I almost hate to tell you,” said Beth, “but we’ve also got another problem.”
“What’s that?” said Michael.
“You were so anxious to catch the service manager in your trap, you forgot to ask him about what our plaintiff’s husband said when he brought his car in to be fixed,” said Beth. “And after Judge Mudrock let the defendant back out of its admission, the service manager is the only direct proof we’ve got that the defendant knew the plaintiff’s car had a leaky gas tank. All the rest is just circumstantial evidence and an ambiguous entry on the defendant’s service order.”
“Well, we’ll put him back on the stand as a rebuttal witness,” Michael said.
“To rebut what?” said Beth. “You can’t call a rebuttal witness just because you forgot to prove part of your case. You’re just supposed to use rebuttal witnesses to rebut something the other side brought up – not fill in the blanks. We’d probably be better off asking the court to let us reopen our cross-examination before the defense does its redirect.”
Which is exactly what happened. Everyone was up at sidebar when Beth asked Judge Mudrock if she could ask a few questions that her young co-counsel had inadvertently omitted. Michael looked humiliated, which may have been why the judge said, “Well, I was a young lawyer, once.” And let Beth fill in the holes Michael had left.
That evening they talked about it some more. “Look, Michael,: Beth said, “don’t take it too hard. You haven’t done anything that thousands of other lawyers don’t do every day without giving it any thought. You treated the witness like Mallory treated Mt. Everest. You attacked him because he was there. It was like you figured that if the defense thought it was worth their while to put him on the stand, it was worth your while to go after him with a destructive cross-examination.”
“Well, I certainly didn’t want to give the jury the impression that we agree with whatever their witnesses say, just because they don’t look like they’re creatures from the black lagoon.”
“Wait a minute,” said Beth. “Just because you don’t cross-examine a witness doesn’t mean you’re saying you agree with all of his testimony.”
. . .
“But you’re dodging my point, which is something you’ve got to understand,” said Beth. Everything you do in the cross-examination of any witness has to fit your theory of the case, or you don’t do it. And attacking the credibility of the service manager did not fit our theory of the case – it got in the way.
. . .
“There are some things that you aren’t going to do, no matter how tempting they may seem.
“First, the purpose of cross is not to make the witness’s testimony on direct examination any better. You are not a part of the opponent’s trial team and it’s not your job to improve their case. So don’t start out cross saying, ‘There are just afew things I’d like to clear up in your direct examination.’ That says you agree with all of the witness’s testimony except for a few little picky details – the rest is fine. Even worse, if you keep repeating that mantra about ‘a few things you’d like to clear up,’ you’ll start thinking that’s what you’re supposed to do.
“Second, the purpose of cross-examination isn’t to ask the witness for information – to tell you things that you didn’t know. The purpose of cross is to let you testify – to tell your side of the witness’s story so that the witness has to agree that what you say is true.
“How do you do that? Sift through the different techniques from all of the books and lectures and trial demonstrations and you will find three basic choices:
“First, do a constructive cross-examination – have the witness give some useful testimony that helps your case instead of trying to tear down what he said on direct.
“Second, have the witness validate your testimony, demonstrating that you’re actually a better source of information than he or she is.
“Third, attack the witness’s character and integrity head-on – which is usually a mistake unless it is essential to your theory of the case. It typically involves a personal war between you and the witness in which the judge and jury take the witness’s side.”
“I hear you,” said Michael, “and I don’t think I actually attacked that service manager’s character.”
“No?” said Beth. “Maybe it was when you said, ‘Were you lying then or are you lying now?’ that I got the wrong impression.”
“Anyway, let me give you an example of a constructive cross-examination. Say you’re representing a woman whose back got seriously injured when the defendant’s 6,500-pound sport utility vehicle rear-ended her while she was waiting at a red light. Liability is not a problem – but medical causation is. Her orthopedic surgeon says three discs in her lower spine were ruptured by the impact. But the defendant’s expert says her condition was caused by a progressive arthritic degeneration of the spine, and the wreck had nothing to do with it.
“Should you attack the defendant’s doctor’s opinion? Your doctor has already done a fine job of giving his evaluation. Besides, your plaintiff used to work in a water-meter factory, machining 30-pound brass castings on a grinding table until the crash, and she’s been unable to work ever since. So why give the defense doctor another chance to explain his opinion when you can bring out a lot of helpful things instead?”
“Like what?” said Michael.
“Like the defense doctor agrees that the plaintiff is seriously disabled and there is no way she could fake it. She is unable to bend forward more than 15 or 20 degrees despite three operations on her back. She has to take heavy doses of painkillers that make it impossible for her to drive or operate any kind of machinery. And because of her condition it would be virtually impossible for her to ever work as a machinist again.
“And while you’re developing all this good information, the doctor is waiting for you to go after his opinion concerning the cause of your plaintiff’s condition. So he is agreeing with things he has no argument with anyway. But after you have painted the picture of a woman whose back is in terrible shape, instead of attacking the doctor’s ideas about arthritic degeneration, you just stop and say, ‘Thank you, doctor. Your Honor, we have no further questions.’ “
“But won’t the defendant just go back to his doctor’s opinion on redirect?” said Michael.
“They’ll probably try, but it shouldn’t work – first, because they’ve already covered it, and second, because it’s outside the scope of the doctor’s cross,” said Beth.
“Then why wasn’t the cross-examination outside the scope of direct?” said Michael.
“Because the severity of her condition, the futility of further surgery, her pain, the effects of her medication, and the limitation on her body movements all relate to his knowledge of her medical condition and his ability to evaluate it. It’s all legitimate preliminary information – you just never take it any further.”
Michael looked astonished. “How’d you know all that stuff?” he said.
“That cross was part of a case I had,” Said Beth. “I prepared that response so I could defend my cross-examination if the defendant tried to attack it. Always assume that your opponent will try to do something to stop an effective cross. And because you can’t count on quick thinking to give you a good answer to their objection – you’ve got to prepare in advance.”
“Okay,: said Michael. “What about the next category – getting the witness to validate your testimony. Isn’t that just a fancy way of saying you’re attacking the witness head-on?”
“Nope,” said Beth. “The two are entirely different. One shows that something the witness said is incorrect. The focus is on what was said – not on who said it. The other is a personal attack on the honesty and integrity of the witness. It’s the difference between ‘I don’t know if I agree with what you said,’ and “You’re a morally corrupt congenital liar who’d sell his grandmother’s bones for a nickel.’
“Instead of making an outrageous attack, the idea is to use the witness to validate you as a reliable source of information – someone the jury can trust to tell the truth.”
“Oh, come on,” said Michael, “isn’t that carrying cross-examination a little far? ‘Isn’t it true, Mr. Abernathy, that I’m a better witness than you are?’ Who’s going to agree with that?”
“You don’t use a question to tell the jury what to think – you show them,” said Beth. “You show the witness what she said on direct. You show her what she said in her letter or her report or her deposition and she agrees or it’s obvious you’re right – she said it different the first time than she did today. That simple process shows the jury that you’re more careful and accurate than the witness is.”
“I wish it were as easy as you make it sound,” said Michael.
“It is if you watch how you do it,” said Beth. “First, remember you’re the cross-examiner. You – not the witness – decide what you’re going to talk about. You’re the one who gets to pick every disagreement you have with the witness’s testimony. Since you’re the one who gets to pick the fights, you should only pick ones you know you’ll win. And you get to say everything the way you like with simple leading questions.
“Whether the witness was wrong about something important is only part of the test for whether you select the topic. Even more important is how clearly and simply you can demonstrate that you are right and the witness was wrong. It doesn’t matter how right you are if you can’t prove it.
“One of the nice things about this approach is that you can be thoroughly pleasant about how you point out the witness’s mistakes and contradictions. It not only makes it easier for you to do the cross-examination, it makes it much easier for the jury to realize that every time you bring up a new topic, you’ve got the correct answer right in your hand.”
“Okay,” said Michael. “What about the third category – Operation Trial Storm?”
“You already know the answer to that one,” said Beth. “There comes a time when you have to actually attack the witness. But two warnings: First, be sure you really have to do it. Second, remember what Irving Younger said: ‘Cross-examination is a commando raid – not the invasion of Normandy.”