EFFECTIVE TRIAL ADVOCACY: CROSS-EXAMINATION

• DISTRICT COURT OF THE VIRGIN ISLANDS

• MID-YEAR CONFERENCE• JULY 11, 2014

• PROFESSOR STEPHEN A. SALTZBURG

Cross-Examination

• Purpose: To Argue Your Case to the Jury (or Judge) Through the Witness

• Strategies• 1. Get Favorable Info From

Witness (Hitchhiking)–Don’t Assume All Witnesses Will

Only Help 1 Side

2 More Strategies

• 2. Limiting or Cabining the Testimony– Pointing Out What the Witness Did Not See or

Hear• 3. Attack the Witness’s Credibility

– You Must Attack When Necessary to Win– You Must Win the Attack– If You Lose the Attack, Your Credibility is

Damaged

Multiple Tasks

• It is Possible to Do More than 1 Thing with a W– Might Elicit Favorable Facts– Might Also Attack W as to Facts on Direct

• Inconsistent Statement as to Opponent’s Facts

– Might Limit and Also Elicit Favorable Facts• Order of Cross-Exam is Different from

Order of Direct

Destructive Cross-Examination

• If you are going to hit a W, draw blood early• Jury expects it• If you believe you can damage a W, you have to

show it early• If you strike a heavy blow early, it’s impact is

likely to have a continuing effect on the W• You want to start strong and end strong with

every W• This is particularly important with Ws you attack

Learn How to Lead: Young Lawyers Need Practice

• Learn to Lead• Young Lawyers Ask “Isn’t it a

fact . . .?”• Or “Isn’t it true that . . . ?• Or “. . . Isn’t that true?”

With Experience, Learn to Lead with Statements

• With More Experience You Can Drop These Words

• E.g., “You Went to Philadelphia?”• E.g., “You were alone?”• E.g., “It was dark?”• E.g., “You were scared”• The X-Exam is Your Opening Statement

Broken into Pieces

Court Reporters Know

• They Will Put a Question Mark After Your Statement

• But Suppose There is an Objection – E.g., “Will Lt. Kaffee Ask a Question Any Time Soon?”

• Suppose the Court Sustains the Objection

No Reason for Fear

• Next Question: “So, You Went to Philadelphia, didn’t you?

• Next Q: “Then You Went Home, Right?”• Next Q: “And You Went To Bed?”• Let an Adversary Object That This is a

Statement Not a Q. • The Jury Will Decide in the End Whether

You Are Asking Qs

• 1. Use Only Leading Questions– Sometimes a Witness Hurts Herself More When

She Has to Answer a Non-Leading Question

• 2. Insist that Witnesses Answer Yes or No– What If They Say They Cannot?

• 3. Never Ask a Question You Do Not Know the Answer to– Sometimes You Will and Will Not Fear the Answer

Reject the Commandments

General Rules

• Commonly Said, Don’t Ask a Q You Don’t Know the A To– Good Rule Generally– But, There are Times You Don’t Care What the

Answer Is• Any Answer Will Help You• May Take Some Experience to Know When

• Be Very Careful with a “Why” of “How” Q on Cross?– Opens the Door for the W to Repeat Entire Direct– But Never Say Never

The Oft-Repeated Idiocy

• Commonly Said, Don’t Ask the Extra Question– E.g., Direct Exam W Says D Bit off Victim’s Ear

• X-er Asks “It’s True, Isn’t It That You Never Saw the D Actually Bite the Victim?”

• Extra Q: “So How Do you Know He Bit It?– A: “I Saw Him Spit it Out”

– Failure to Ask the Extra Q Hurts the X-er, Because the Direct Examiner Will Bring Out the Fact and Make it Appear that the X-er Tried to Trick the Jury

If You Have a Point, Make It

• The Fact is that The X-er Should Not Go Down a Road If the End is Unhelpful

• If You Have a Point to Make on X-Exam, Make It

• Save Nothing for Closing Argument• Jurors are Making Up Their Minds Early• Closing Argument Will Be Too Late

Telling the W to Answer Yes or No

• Some Lawyers Like to Tell A W, “Now Just Answer My Questions Yes or No”

• Good?• No, But Why Not?• Suggests Lawyer is Afraid of Witness or

Truth• You Must Learn to Control the W Through

Questions Not Orders

Listening and Using the Direct Exam in Your X-Exam

• X-er Must Pay Careful Attention to Direct• Don’t Take Notes on a Pad in

Chronological Order• Order of Cross-Exam is Different from

Order of Direct• Use Separate Pages or Cards for Each

Point

Listening and Using the Direct Exam in Your X-Exam

• Write Down Verbatim What Witness Says that You Want to X-exam on

• Plan “Lines of Cross”– Different Points You Want to Make Consistent

with Your Theme– Put Witness’s Direct Testimony Where it Fits

• Remember that Your Theme Was Laid Out in the Opening– X-Exam Drives Home that Theme

Cheating Witnesses

• Some Ws will Cheat• As Terry MacCarthy (Federal Defender,

Chicago) Says, “There are Ws Who, Like Puppies, Want to Tinkle on Your Floor”

• E.g., You Ask, “So After You Met with the Plaintiff, You Went to Johnny’s Bar & Grill?

• W Answers: “So What, Your Client Goes There All the Time.”

• When a W Cheats and Answers a Q Not Asked, the Answer (Part or All) is Nonresponsive

• Only the Questioner Has This Objection• If the Questioner Does not Care that W Gave

More than Was Asked, No Harm Done• If an Answer is Nonresponsive and also

Reveals Inadmissible Info that Hurts, You Must Object and Move to Strike or the Inadmissible Info Stays in the Case

Non-Responsive, Inadmissible and Hurtful

• Example of an Answer that is Nonresponsive and also Reveals Inadmissible Info

• Q. Did You go to Johnnie’s Bar After the Accident?

• A. So What, Your Client Got Into a Fight There a Year Earlier and Tried to Kill a Police Officer.

• If the Testimony About the Fight is Inadmissible, You Must Move to Strike or the Testimony Remains in the Case

Example of Non-Responsive, Inadmissible and Hurtful

Don’t Appeal to the Judge Unless You Have To

• If an Answer is Nonresponsive but Merely Reveals Admissible Info that Will Come Out Later or is Otherwise Harmless, Don’t Appeal to the Judge

• Judge May Not Be Paying Attention• Judge Might Rule for the W

– Makes You Look Bad• You Look Weak

– Looks Like You Need the Judge to Help You with the W

Show That the Witness is Cheating w/o The Help of the Judge

• How?• Ask the Cheating W the Same Question Again in

the Same Words• Don’t Ask the Court Reporter to Read the Q

Back– They Can’t Find Anything– Takes Too Long

• You Ask the Same Q Again

Ws Always Try to Save Themselves

• A W Will Always Pick Him/Her Self Rather than the Party Who Called the W

• Rules and Laws of Probability Matter• W Does Not Want to Look Like a Liar

or Fool

Ws Always Try to Save Themselves

• A W Will Always Pick Him/Her Self Rather than the Party Who Called the W

• Rules and Laws of Probability Matter• W Does Not Want to Look Like a Liar

or Fool

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Amand — Illustrating How Not to Appeal

to the Judge

• Maritrans Sues US Claiming a Taking When US Passes Statute Barring Use of Single Hull Tank Barges

• Maritrans Hired an Expert, David St. Amand, Who Had Agreed to Be in a Partnership with a Retired Maritrans V.P., James Sanborn, Who Clearly Would Be an Important Witness in the Case for Maritrans

• St. Amand Agreed to Be a Govt Expert Without Consulting Sanborn

• When Sanborn Learned What St. Amand Did, the Partnership Ended

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Amand --

Illustrating How Not to Appeal to the Judge

• Q Jim Sanborn, and I wrote this down. I think I have the words right. He is an extremely trustworthy person. That was your quote. Is that not true?

• A Through Monday I would have said he's one of the most ethical people I know.

• * * *

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Amand --

Illustrating How Not to Appeal to the Judge

• Q You had to know that he might be a witness in this case.

• A I didn't know where his relationship with Maritrans stood after he left the board.

• Q You did work for Maritrans, you have said. You did not know he was the vice-president in charge of operations in 1987, the year this entire case revolves around?

• A Oh, yes. I was very much aware.

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Aman -- Illustrating How Not to Appeal to

the Judge

• * * *• Q You were in this relationship where you

have agreed with him you are going to do the tug and barge stuff, yet you decide that you are going to take on the possible role of becoming a witness and put yourself directly in conflict with the person who have a business relationship with?

• A I don't think I would characterize it that way.

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Amand -- Illustrating How Not to Appeal to

the Judge

• Q We seem to have to be here in exactly that position, do we not?

• A We do now, but you are saying what was my frame of mind when I took on the assignment, and that wasn't my frame of mind. I didn't know how Jim was going to react.

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Amand -- Illustrating How Not to Appeal to

the Judge

• Q Your frame of mind was you wanted the money, right?

• A I'm in business as a consultant. I'm not in business to turn down jobs.

• Q You wanted the money?• A And I thought I was being asked to

work for the correct party.• Q You wanted the money?

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Amand -- Illustrating How Not to Appeal to

the Judge

• MS. MOORE: Objection, Your Honor. This is unduly argumentative. He has asked the same question three times, and it is irrelevant.

• THE COURT: But he has not answered it yet. I suppose it is implied, but if you answer it he will move on, I guess.

• MR. SALTZBURG: I will. I promise. I will only ask it once if I get an answer.

July 17, 1997 Cross-Examination of Government Tanker ExpertTestimony of David St. Amand -- Illustrating How Not to Appeal to

the Judge

• BY MR. SALTZBURG:• Q You wanted the money?• A I would like to be hired on this job,

yes.• Q You wanted the money? Was that

a yes to my question?• A Yes. I want to be paid for working on

this job.

Do Not Fear the Evasive or Cheating Witness

• When a W Fights the Examiner on a Point the W Cannot Win, the End Result is to Bolster the Credibility of the Examiner and to Damage the W Greatly

• Do Not Fear Ws Who Try to Fight the Impossible Fight– They Give You Gifts

• 1. Prior Inconsistent Statements– Lawyers Preparing for Trial Want to Obtain as

Many of These as Possible• 2. Credibility Attacks

– Case Specific• Prior Inconsistent Statements and Bias

– General Attacks• Convictions, Reputation, Bad Acts

• 3. Rules and Laws of Probability

3 Tools of Cross-Examinaiton

Prior Inconsistent Statement

• Don’t Wind Up– Do You recall having your deposition taken?– You came to my office?– Your lawyer was present?– You took an oath like the one you took today?– You were physically and mentally okay?

Impeachment Must Be Immediate and Clear

• Pit the Witness’ Trial Testimony Against the Prior Statement So that the Contradiction Cannot Be Missed

• Q. “Now, sir, you have just testified to this jury that you went to Philadelphia after this meeting. Do you recall that when your deposition was taken on May 3, 2003, you were asked this question and gave this answer [page 20, lines 4-8]: ‘Q. Where did you go after the meeting?’ ‘A. New York.’ Do you recall that Q and that A?”

Prior Inconsistent Statement

• Page and Line Numbers Avoid Interruptions and Satisfy Rule 613 (b).

• Once You Have the Contradiction, You Can Point Out that the Depo Was Under Oath, with Counsel Present, etc.

• Make the Jury Understand the Contradiction in the Moment

• Don’t Let the Witness Blurt Out an Explanation Before You Make the Accusation

• Criminal Defendants are Often Convicted on the Basis of Testimony from the “Worst of the Worst”

• Jurors Understand That Even They Sometimes Tell the Truth

• Jurors Are Looking for the Truth, Not to Punish Witnesses for Past Acts

• Bad Character and False Testimony Together is Likely Fatal

Credibility Attacks Alone Don’t Often Win Cases

• Jurors Vote on Every Q and Every A• If They Agree with the Cross-Examiner

and Reject the Witness, the Cross-Examiner’s Rule I Soars and the Witness’s Credibility Suffers Along with the Opposing Lawyer’s Rule I

• If the Jurors Agree with the Witness, the Reverse is True

Rules and Laws of Probability

• The Cross-Examiner Need Not Cross-Examine on Everything Said on Direct and Can Choose and Avoid Subjects

• A Witness Who is Hurt Badly During Cross-Examination on One Subject May Lose Credibility on All Subjects

• The Converse is True If a Witness Survives Cross-Examination on One Subject

The Cross-Examiner’s Advantage

How to Maintain Your Own Credibility

• No cheap shots• No trick questions• No quibbling• No demeaning the W unless the W has

shown he/she deserves it• Argue through the W, not with the W• No rudeness• Make the jurors vote for you

Last Word

• Juries are likely to empathize with Ws not Lawyers

• But, if a W cheats and you show it to the jury, they will respond appropriately

• No one likes a bully, especially a bullying lawyer

• But, no one likes a W who appears biased and who disrespects the process