Cross Examination

How to Ask Leading Questions

1 Comment 20 August 2010

During cross-examination, would you like to prevent witnesses from dodging your questions?  Would you like to tell a compelling story?  Do you want jurors to look to YOU for the answers during cross-examination?  If so, you need to develop your skill of asking leading questions.

This past summer, I taught a Trial Advocacy class at one of our local law schools.  It’s always interesting to go back to law school because, among other things, you realize that you take certain skills and principles for granted.  But when you go back to the beginning, back to that time before you started to “think like a lawyer,” you realize how much your thought processes have changed.

One of the things I was taking for granted was the cross-examination skill of asking leading questions.  Most trial lawyers who have been practicing for any length of time know that you’re supposed to ask leading questions on cross-examination.  Your job is to control the witness and tell your client’s story, right?  Ideally, you want to tell reduce the witness to a bobble head doll, silently nodding his head "yes" to each statement as you tell your client’s story through leading questions.

But do you remember how you learned to ask leading questions?  Do you ask them as well as you would like?  Can you tell an effective story through leading questions?

During my class, one of the students was having difficulty asking leading questions.  You can’t blame him – it’s unnatural to ask leading questions.  If you went out to a bar, you wouldn’t walk up to someone and ask them leading questions, would you?  (“You’d like a drink, wouldn’t you?” “You’d like my number, is that not true?”) Asking leading questions outside of the courtroom is not just rude…  it’s weird.

But that’s how we’re expected to ask questions during cross-examination.  How can you master the art of asking a leading question when you’ve been conditioned to think and ask questions differently your entire life?

I gave this student an idea that worked for him.  I hope that it might work for you, too.  Here’s how it went.

I started by telling him, “Ignore the case we’re working on.  Ignore the witness you’re cross-examining, too.  Instead, I want you to tell me a story.  Do you remember the Wile E.  Coyote and Road Runner cartoons from when you were a kid?  Good.  I want you to tell me one of the Wile E.  Coyote stories, but I want you to do it in a new way.  You’re going to tell me the story through cross-examination.  We won’t hear anything but ‘yes’ or ‘no’ from the witness.  Our attention is going to be focused on you.  You won’t ask any questions like, ‘Why?’ or ‘How?’ Instead, you’re going to ‘ask’ short, simple statements that the witness either agrees with or disagrees with, but the witness won’t say anything more than ‘yes’ or ‘no.’ Can you do that?”

He said that he could.  With the pressure of performance lifted from his shoulders, he started to tell us the story of Wile E.  Coyote:

• “Your name is Wile E.  Coyote, isn’t it?”
• “On March 23rd of last year, you placed an order with the Acme Co, right?”
• “Three days later, a package arrived, didn’t it?”
• “A box from the Acme Company.”
• “You opened the box.”
• “You looked inside.”
• “It contained a jet rocket.”
• “And roller skates.”
• “You removed the jet rocket.”
• “You strapped the jet rocket to your back.”
• “You strapped the roller skates to your feet.”
• “You saw the Road Runner.”
• “You pointed yourself towards the Road Runner.”
• “You lit the rocket…”

It was fascinating to watch.  A few moments earlier, he hadn’t been able to ask leading questions during his cross-examination of the witness.  But then, once the pressure of the witness was removed, he quickly mastered the art of telling a story using leading questions.

Would you like to apply the same skills to your cross-examinations?  Here are a couple of guidelines.

Tell a story.  You will be using leading questions to tell a story.  It might be your client’s story, the story of missed opportunities (what else could the witness have done or should the witness have done?), or the story of impediments to observation (what did the witness misread, fail to observe, or neglect to observe?) There are numerous stories you can tell – pick your story, and then tell it with leading questions. 

Practice by telling the stories you already know.  You represent the Three Bears, and you have the opportunity to cross-examine Goldilocks.  What story will you tell through your leading questions?  Cross-examining the Big Bad Wolf, can you tell a story from the Three Pigs perspective?  Or cross-examine your favorite movie villain.  Practice telling stories with leading questions until it becomes second nature.

Narrate your drive.  As you drive to work, use leading questions to narrate your travels.  Look out your window – what do you see?  Describe it with leading questions:

• “I’m driving.”
• “On Elm Street.”
• “Heading southbound.”
• “To my left is a car dealership.”
• “A Ford dealership.”
• “Their parking lot is filled with vehicles for sale.”
• “New vehicles are parked to the left.”
• “Used vehicles are parked to the right.”
• Etc…

Cross-examine your dog.  As I mentioned earlier, it’s not normal to ask leading questions.  You need to practice.  One of the best ways to do that is to cross-examine your dog or something else that won’t understand what you’re doing.  If you attempt to practice by asking your husband or your girlfriend leading questions, do NOT hold me responsible for the inevitable breakup that follows!  Practice on your dog, an inanimate object, or anything else that won’t get upset by this style of questioning, because the witness would only respond “yes” or “no” to your questions anyway.

One fact per question.  Only ask for ONE fact per question.  Look at the Wile E.  Coyote example or the driving examples.  Examine each question.  How many facts does each question request?  If you ask for too many facts per question, it gives the witness room to escape.  If you ask for only one fact with each question, you will tell a more effective story.  Limit your questions to ONE fact per question.

Drop the taglines.  Most attorneys add taglines to their questions (“…didn’t you?” “…is that not true?” “…correct?”), but you probably don’t need to use them.  You can use the tone of your voice to indicate that the statement is really a question.

Although some judges require you to add taglines to create a “proper” leading question, most will not.  If they do, consider using taglines for your first few questions, but then dropping them once you and the witness get into the proper rhythm.  Here is the rhythm you want to develop: You ask a question, the witness says “yes” or “no,” and then repeat as necessary.

Once you develop your command of leading questions, something amazing will happen.  You will stop witnesses from evading your questions.  You will tighten your cross-examinations.  Best of all, jurors will look to YOU for the answers during cross-examination.

Cross Examination, Depositions, Direct Examination

Avoiding Gunfights During Cross-Examination

2 Comments 13 August 2010

If you were in the police academy, one of the most important things you would learn is how to keep safe when you’re out on the street.  To stay safe, you’d want to learn how to prevent verbal confrontations from escalating into physical fights, and how to prevent physical fights from escalating into knifefights or gunfights.  As it turns out, one of the easiest ways to prevent situations from escalating to the next level is by keeping your emotional level lower than the perp’s emotional level.  (One of the other things you learn in police academy is how to use cool words like “perp.”)

For simplicity’s sake, let’s assume that the scale for emotional levels runs between 0 and 10.  At level 0, you’ve got the Dalai Lama on quaaludes.  You’re calm, cool, and collected, and nothing in the world can upset you.  At the other end of the spectrum, imagine Bill O’Reilly and Keith Olberman battling for control of the country’s political mindset in a winner-takes-all steel cage death match battle royale.  At this level, you’re angry that you can’t get angrier – everything upsets you.

So let’s say that you’re a rookie cop out on the street dealing with someone at level 5.  To prevent the situation from becoming more violent, you’d want to keep your emotional level lower than theirs, preferably at least 2 levels lower.  By talking slower, being quieter, and acting calmer than the other person, you can hopefully defuse the situation by bringing the other person’s emotional level down to yours.

But what if you decided to approach the person on the same emotional level, or even worse, at a higher level?  When you’re at a more intense level, then the other person will usually rise to the challenge and increase their level, too.  For example, if the other person is calm, but you start yelling at them, they’ll ratchet up their emotional level and start yelling at you.  In return, you’ll get angrier, and start yelling louder or more profanely.  Before long, if one of you doesn’t step back, you’ll find yourself in a physical confrontation (or worse).

That’s why good police officers are able to avoid physical confrontations, because they know how to keep themselves “below” the other person’s level, and ensure that the situation is resolved peacefully.

But here’s the funny thing about police officers…

Despite all of their training about de-escalating confrontations with people out in the streets and avoiding violence by keeping their emotional level below the antagonist’s level, many of them seem to do the exact opposite when they walk into a courtroom!

Have you ever witnessed a defense attorney cross-examine a police officer?  It often sounds like this:

Okay, that’s a bit of an exaggeration.  But if you’ve spent much time in the courtroom, chances are you’ve seen a witness fall apart during cross-examination by letting their emotions get the best of them.  It’s not just police officers — expert witnesses, corporate officers, lay witnesses — anyone can lose their cool in the courtroom.

For example, here’s the deposition of a CEO who got a little upset during his deposition:

(Ultimately, he and his lawyer were fined $29,000 for his actions during the deposition.)

Unfortunately, when your witnesses lose their temper during cross-examination, jurors lose respect for the witness.  In an instant, your witness can move from “trusted observer” to “biased jerk,” forcing the jury to discount everything he says.  (It’s not just witnesses, either.  If you lose your temper with a witness, even when the witness deserves it, you’ll sacrifice your credibility with the jury.)

So how can you prevent emotions from taking control in the courtroom?  How do you ensure that your witnesses come out on top by keeping their emotional level lower than the cross-examiner’s?

The first thing to do is to help your witnesses understand how untrustworthy they look when they lose their cool.  Videotape the witnesses during your mock cross-examinations back in the office, and make them watch the videotape.  Often, nothing needs to be said.  For many witnesses, this is the first time they’ve ever seen themselves on video, and once they see how undignified they look when they get upset, they’ll understand why you want them to monitor their emotional level.

Once they’ve seen how they look when they get upset, the next step is to help them understand what is triggering their anger.  Is it a specific factual topic?  The examiner’s tone?  An implied (or explicit) accusation?  By identifying the triggers, you’ll prepare your witness to anticipate when they’ll get upset during cross-examination, and help them avoid the confrontation.

You’ll also want to teach your witness which tactics your opponent uses to get under people’s skin and trigger their anger.  Many attorneys are one trick ponies.  Rather than using solid cross-examination skills, these lawyers will rely on raising their voice, rapid-fire questions, attacking integrity, misstating the witness’s name or rank, forcing the witness into “I don’t know” responses, staring down the witness, or other “tricks” that anger the witness.  If your witness is prepared, they’ll know to expect the lawyer’s trick so they won’t be taken by surprise and can maintain their calm exterior.

Finally, you’ll want to prepare your witnesses for what they should do when they recognize that they’re starting to lose their cool.  Remind them to slow down, take a breath, and pause before answering.  Whatever it takes, they need to keep their emotional level lower than the cross-examiner’s.  If they can’t, the jury will ignore what they say, and their testimony will be worthless.

Opening statement

Keeping your opening statement promises

3 Comments 06 August 2010

Moving isn’t the easiest thing in the world.  When you move from one home to another, you’re basically transferring your entire life (and your family’s life) to a new destination.

What we recently moved between homes, we had too much stuff (more specifically, too much HEAVY stuff) to move by ourselves, so we had to hire a moving company.  Out of all the movers we contacted, only one of them called us back, but they did a terrific sales job.  He told me how all of their movers were bonded, how reliable they were, how careful they were, etc. etc.  Most importantly, he promised me that they’d be at our home “sometime between 11 AM and 1 PM” to help us move.

11 AM arrived, and as you’d expect, the movers weren’t on time, but no big deal — they said they be there between 11 and 1…

12 PM…  No movers.

1 PM…  No movers.

2 PM…  Still no movers, but when I call the moving company, he tells me that the truck got stuck in traffic, and promises me that they’ll be there “in half an hour.”

3 PM…  No movers, and my calls go to voicemail.

4 PM…  No movers, and no return phone call.  I finally get through to a customer service representative, and he tells me that the truck had a mechanical problem, but will be there in “half an hour.”

5:15 PM… No movers, and no return phone calls, but I get a promise that they will be there “first thing” tomorrow morning, between 8 and 9 AM.

Next day…

8 AM…  No movers.

9 AM…  No movers.

10:14 AM…  Finally, only 23 hours and 46 minutes later than expected, the movers arrive!

Now let me ask… Regardless of how great a job they do moving our items from Point A to Point B, do you think I’ll ever use their moving company again?  Do you think I’ll ever recommend their moving company to any of my friends or colleagues?  If you asked me for a moving company recommendation, do you think I’d be neutral, or do you think Id tell you to stay far away from this company?

The reason that I’d never trust them again isn’t because the truck was late.  I understand that trucks can get stuck in unexpected traffic or that they can break down… That’s not a big deal.

The problem is that they PROMISED me the truck would be there, and then when they learned they couldn’t keep their promise, they didn’t do anything about it.  If they’d simply called me to let me know the truck was running late, I could have rescheduled other errands I had planned, and gone on about my day.  The truth is, I didn’t necessarily need them to be at the house at 11 AM or 1 PM.  They could have come by at 3 PM or 5 PM or even 8 PM that evening, it wouldn’t have mattered.  What I really needed was to be able to trust that they would show up, and to know that I could count on them to keep their promises.

So what’s that got to do with winning jury trials and persuading jurors?

Are you making promises in opening statement?  Are you telling the jurors that certain exhibits will be admitted into evidence?  (“You will see video tape footage showing Ms. Jones playing Jai-Alai, even though she claims to be a quadriplegic!”)  Do you tell them that witnesses will testify?  (“You’re going to hear from Skipper Jones, who witnessed the crash, and he’s going to tell you that the light for Mr. Octon’s car was RED!”)  Do you tell them that you’ll be impeaching your opponent’s witnesses?  (“You’re going to hear that the plaintiff’s star witness has been convicted of 13 crimes of dishonesty, and is an 8 time convicted felon!”)

There’s nothing wrong with making promises in opening statement.  In fact, if you’re not promising the jurors anything during opening statement, you’re probably not giving them any reason to listen to you.

But, if you are going to make promises during opening statement, you need to keep your word.  If you don’t, your jurors will hold it against you, EVEN IF THE LAW DOESN’T REQUIRE WHAT YOU PROMISED!

For example, let’s say that you’re a criminal defense attorney, and during opening statement, you promise the jurors that your client will testify, and that he’ll reveal who the REAL killer is during his testimony.  But after the prosecution rests their case, you decide that they’ve done a horrible job, and don’t want to put your client on the stand because it will give the prosecutors a chance to resurrect their case.

Even though the law doesn’t require you to prove who the real killer is, your jurors may still hold you to your promise.  Jurors expect you to be a man or woman of your word.  So, if you’re going to make any promises during opening statement, be prepared to deliver upon them.  If you don’t tell them who the real killer is, they may think you’ve failed to meet your burden (even though you don’t have one), and may hold it against your client.

But even when you can’t deliver on your promises  because of circumstances beyond your control, all is not lost.

The question is, can you explain to the jury why you’re unable to meet your promise?  Better yet, can you get someone to explain it from the witness stand, so you’re not stuck trying to argue from your heels during closing argument?

For example, if you intended to call Skipper Jones as a witness, but couldn’t call him because he died midway through your opening statement (it was too long and too boring, so he hung himself in the hallway), the jurors will want to know why Skipper Jones isn’t going to take the witness stand.  Before you start playing Skipper’s video deposition or reading a written copy of his deposition, have one of the medical team testify (“That dude is dead”) so your jurors aren’t left in the dark wondering why he’s not there.  They won’t like it as much as if you’d kept your promise, but at least they understand why you’re unable to keep your word.  By being upfront and honest, you maintain your integrity with the jury, and don’t give them any reason to doubt you.

In summary, here’s a good rule of thumb for making promises in opening statement: It’s better to underpromise and overdeliver.  Make it easier than they thought it would be, and the jurors will thank you for it.  Make it more difficult than you promised them it would be, and they’ll hold it against you until they reach their verdict.  As a lawyer, your word should be your bond, both inside and outside the courtroom.  Break it at your own peril!

Cross Examination, Direct Examination

Cross-Examining Your Client: You Play Like You Practice

2 Comments 23 July 2010

One of the most important pre-trial preparation steps you will undertake is getting your client ready for cross-examination.  You know that no matter how well you prepare the rest of your case, if your client falls apart during cross-examination, the case may be lost.  Yet despite its importance, many trial lawyers’ client cross-examinations preparations are woefully inadequate.

The reason their attempts fall short isn’t because the attorneys don’t know what topics to tackle, and it’s not because they don’t know how to frame their questions.  The reason they fall short is because most trial lawyers are afraid to practice like they’ll play.

One of my favorite maxims from sports is “Practice like you play.”  From little league to the professional leagues, coaches at every level of play invoke this phrase to push their players, because they know that a player’s performance during practice determines his level of success on the field.  If a player can perfectly execute drills during the third hour of practice, when his body is weary and ready to give out, then you can be assured he’ll be able to perfectly execute those same skills during the final moments of the game. 

One of the worst things coaches can do is to ease up on their players when they get tired during practice.  If he lets them take it easy or run at 3/4 speed, that lack of discipline will come back to haunt the team during the next game.  By pushing his players hard and expecting them to give 100% during practice, the coach ensures that his players develop strong habits that will carry over to the field and help them win games.  The only players who prefer “easy” coaches are the players who don’t care about winning.  Winners want the coach who will push them to their limits during practice, so that the gameday adversity seems easy by comparison.

The maxim of “Practice like you play” is just as true in the courtroom as it is on the football field.  That means you need to prepare your client for the type of cross-examination that he should expect in the courtroom.  That means you don’t cross-examine him at 1/2 strength, or 3/4 strength, or even 7/8 strength.  You need to rev it up to 100% and attack your client with the same intensity (or greater) that he’ll confront in the courtroom. 

Unfortunately, many trial lawyers aren’t willing to do this.  They’ll tone down their attacks when preparing their clients for cross-examination, because they want to be “nice” to their clients.  After all, the client is the guy who pays the bills, right?  You may respect your client, you may like him, you might even be friends with him…  but not during these preparations.  Put aside your natural inclination to be nice to the people you like, because you’ll be doing your client a terrible disservice when preparing him for cross-examination if you’re “nice” to him.

The harshest cross-examination your client should ever endure is the one that will take place in your office before he testifies, because that will make the cross-examination he faces on the witness stand seem easy by comparison.  You don’t want your client to step down from the witness stand and think, “Holy crap, I wasn’t prepared for that!”  You want him to tell you, “I thought that guy was going to be a lot worse than he was.  His cross-examination wasn’t nearly as bad as I thought it would be!”

As coach Paul “Bear” Bryant said, “It’s not the will to win, but the will to prepare to win that makes the difference.”  Remind your client about the purpose of the preparation session: you’re preparing to win.  If you and your client are willing to prepare to win, your client’s cross-examination session needs to be rough.  Make him as uncomfortable as possible.  Cross-examine him as harshly as your opponent will.  Even harsher.  Unload on him with both barrels, giving him the most rigorous cross-examination you can muster.

During this preparation session, he may hate you for it.  He may curse at you or threaten to fire you.  “Why are you doing this,” he’ll ask, “do you hate me or something?”

No, of course you don’t.  Just like the demanding coach who pushes his players harder than they’ve ever been pushed before, or the drill sergeant who pushes his recruits to their breaking points, you’re not doing this because you hate him.  The reason you’re pushing them so hard is because you love him, and you know that if he doesn’t practice like he intends to play, he’s going to get killed when he steps onto the field of battle.

Cross-examine your client as vigorously as you can, and “practice like you play.”  In the short run, he may hate you for it, but eventually, he’ll be glad you pushed him as hard as you did.  (He just may not get around to saying “Thank you” until after you’ve won the case.)

Evidence

The Danger of “Self Authenticating” Documents

0 Comments 16 July 2010

Normally, when you’re seeking to introduce items into evidence, you need a live witness to testify and establish your evidentiary predicates.  But some evidence is so trustworthy that it doesn’t require a witness.  These forms of evidence are inherently reliable, and are deemed to be “self-authenticating.”  Examples of self-authenticating evidence include:

• State and federal laws
• Contents of the Federal Register
• Laws of foreign nations
• Acts of Congress
• Court records
• Rules of court
• Municipal and county charters
• Ordinances and resolutions of municipalities
• Administrative agency rules
• Items under official governmental seal
• Facts that are not subject to dispute

The last item on the list is also the most interesting: Facts that are not subject to dispute.  There are two different sources of indisputable facts.  The first source is facts which aren’t subject to dispute because they’re generally known within the territorial jurisdiction of the court.  For example, here in Orange County, Florida, everyone knows that Central Blvd. and Orange Ave. intersect in the middle of downtown.  You wouldn’t need a geography expert to establish that fact — everyone in the jurisdiction is expected to know it, so you can ask the court to take judicial notice of the fact.

The second source of indisputable facts are those which are capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned.  For example, if you were trying to establish which day of the week August 3, 2007 fell on, your judge could take judicial notice that it fell on a Friday.  Why?  Because the fact isn’t subject to dispute — anyone with access to a calendar can quickly and easily determine its veracity.

The great benefit of these forms of self-authenticating evidence is that you can introduce the items into evidence without the time and expense of calling a live witness to the stand.  For example, I recently tried a case where my opponent was seeking to introduce a medical document.  He didn’t use an expert witness or records custodian to admit the document.  Instead, he introduced it using our state’s version of Federal Rule of Evidence 803(6).  In case you’re unfamiliar with it, FRE 803(6) establishes another form of evidence that is (basically) self-authenticating: Records of Regularly Conducted Activity.  When the evidence code was amended in 2000, they eased the business records hearsay exception by no longer requiring live testimony from a business records custodian.  Instead, they now allow you to simply certify that the records are kept in the normal course of business.

Using this evidentiary rule, my opponent didn’t need to call a single witness to the stand.  Instead, he simply handed the document and the certification to the judge, then asked to have them admitted into evidence.  That was it!  Without asking a single question, he satisfied the entire evidentiary predicate for admitting the document. 

That was when I noticed the problem with “self-authenticating” documents. 

After the document was marked into evidence, the attorney asked for permission to publish it to the jury.  The judge granted permission, and the document was handed to the first juror.  The juror received the document and quietly stared at it.  If the document could have spoken, it would have said, “I’m important, because I show that the witness had alcohol in his bloodstream when he was admitted to the hospital.  In fact, the witness had an alcohol level of .089, which is more than the legal limit to drive a car.  You might want to question whether or not this witness knowingly and voluntarily gave up his right to remain silent before he gave that statement to the police…”

That’s what the document would have said, if it could speak.  But it couldn’t.  It just sat there while the juror stared at it.  You could tell from the look on his face that he wasn’t sure what he was supposed to be looking at.  He didn’t have any medical training, so medical codes and terms like “mg/dl” probably didn’t mean anything to him.  He was just as confused as he would have been if the document had been written in Sanskrit.  He stared at it for a moment longer, then passed it to the next juror.  What might have been an important element in the case was completely overlooked, because the document didn’t get a chance to speak.

Many attorneys make the same mistake.  They believe that if a document is self-authenticating, it should be able to “speak for itself.”  But nothing could be further from the truth.  Documents don’t speak.  They don’t explain themselves.  If a juror doesn’t know how to read them, or if they don’t know which parts of the document are important, the document just sits there and silently stares back at them.

Don’t make the same mistake.  As the trial lawyer, it’s your responsibility to ensure that the jury understands your evidence.  Even when your evidence is supposed to “speak for itself,” you still must give it a voice.  The most effective way you can help your self-authenticating evidence “speak” is by strategically publishing the exhibits to the jury.  If my opponent had waited until closing argument to publish his exhibit, he could have shown the jurors which parts of the document to examine closely, and told them why it was important.  Instead, they examined the document in a vacuum, and had no idea why it was important or why they were looking at it.  The importance of the document was lost, never to be regained.

Don’t fall into the trap of automatically publishing your exhibits immediately after they’ve been admitted into evidence.  Wait until the most opportune time to publish them.  This may mean that you don’t publish your self-authenticating documents until much later in your case, when a witness can use the document to explain or enhance his testimony.  It may even mean that you wait all the way until closing argument (when you can explain the document or highlight the important elements) before publishing the documents to the jury.

Self-authenticating documents don’t speak for themselves.  It’s up to you to give them a voice.  Find a way to work the document into another witness’s testimony, or hold off on publishing the document until closing argument.  Regardless of which method you use, you’ll breathe more life into your evidence, making it more persuasive than it ever could be on its own.