I’ve got a confession to make.  It’s embarrassing, but one of my guilty pleasure is to watch the reality TV show, Cheaters.

Cheaters is one of those stupid TV shows that hooks you with the human drama and won’t let you go, even though you’re embarrassed to tell your friends that you watched it.

Sure, it’s trash TV, but it’s also watched by nearly 2 million people every week, especially 18-34 year olds, many of whom will get called to jury duty.  And since good trial lawyers watch what their jurors watch and read what their jurors read, you’ll want to watch a few episodes of the show.  While you’re watching, look for these five cross-examination lessons that you’ll learn from Cheaters:

1. Have a gameplan. Every episode of Cheaters follows a similar formula.  First, the faithful spouse describes the relationship and why they suspect infidelity.  In the second scene, the Cheaters investigators document the infidelity through controlled phone calls to catch the cheater lying, photographing the couple ducking into a cheap hotel room, or even using concealed cameras in the faithful spouse’s bedroom to catch the unfaithful spouse in flagrante delicto (and you thought that the Latin you learned in law school would never be useful!)

In the third scene, the Cheaters host, Joey Greco, shows the proof of infidelity to the faithful spouse, and then asks if he or she would like to confront the cheater.  This is where the show gets good. At this point, they swoop in with 6 or 7 cameras to pounce on the cheater and his mistress.  Joey usually says something snarky, like “Hello, I’m Joey Greco from Cheaters. I don’t need to introduce you to your wife, do I?”  Then all hell breaks loose as the faithful spouse confronts the cheater.  There’s yelling and screaming, tearful outbursts, and sometimes, the scene descends into mayhem as scorned lovers attack their unfaithful spouses.  This is why millions of people tune in every week — they love to watch the confrontations.

But here’s the secret of why they’re able to successfully duplicate the drama every week: All of those steps are scripted beforehand to get the noisest confrontation possible and ensure some good TV.

The same is true for successful cross-examination.  You can’t successfully cross-examine a witness if your entire plan consists of hoping that you’ll be struck with a flash of brilliant inspiration in the courtroom when you rise to cross-examine the witness.  Your deadliest cross-examinations will be crafted in your office or in the library, long before you ever walk into the courtroom.  Invest the time to craft your cross-examination gameplan before you go to court, and you’ll dramatically improve your chances of success.

2. Have the goods. Cheaters never confronts anyone armed with only a “hunch” or a “bad vibe.”  Instead, they videotape the indiscretions so that there’s visual proof of infidelity.  That way, they have their facts straight before they approach the suspect, eliminating any potential wiggle room and preventing him from avoiding the truth.

Before you cross-examine a witness, you need to make sure that you’ve got your facts straight, too.  Depending on the type of case you’re handling, “getting the goods” might mean hiring a good investigator, visiting the scene to photograph the area, locking someone’s story down in deposition, performing a background check, or it might mean plowing through millions of pages of documents.  Whatever it takes, you need to have the goods in hand before you attempt to cross-examine.

3. Believe it or not, people sometimes lie.  On the show, whenever a cheating spouse is confronted, they’ll often deny that anything improper is going on.  “That wasn’t me,” ”I didn’t do anything,” and “She’s just a friend” are all standard denials that you’ll hear on every episode.

(WARNING: Skip this paragraph if you’re prudish — it’s racy!) One of the funniest denials on the show involved a standard “ambush” scene.  As the cameras rushed up to the suspect’s car, you could see him sitting in the driver seat with his pants unbuckled, while the topless woman in his passenger seat bobbed her head up and down in his lap.  His response, when confronted by his wife?  “This isn’t what it looks like!”

Even when caught in the act, people will still deny any wrongdoing.  If you’ve spent any time in a courtroom, you know that his denial isn’t that uncommon.  Witnesses will evade, deny, and even lie.  Your job is to expose those lies for the jury.  Fortunately, when you’ve got “the goods,” you can confront them with the truth.  But if you want to win, you must ensure that you’ve got your ammunition tabbed and ready to go so that you can find it immediately. It doesn’t do you any good to have a smoking gun document if you can’t find it in the heat of trial.  There are dozens of different systems and software programs out there to help you organize your case.  Pick one and use it.  It doesn’t matter which system you use, just so long as you’re comfortable with it and can keep the impeachment materials at your fingertips for immediate access.

4.  Stick to your story. Another common tactic that cheating spouses will employ is to shift the story away from their actions.  As the man buttoned up his pants, he didn’t say, “I’m sorry” or “I’m an idiot.”  Instead, he said something like, “You’re embarrassing everyone – why did you bring all of these cameras instead of confronting me in private?”

When someone has been caught (literally) with their pants down, they won’t want to talk about that. Instead, they’ll try to shift the attention towards another topic, preferably something that either focuses on the accuser’s shortcomings, or shifts blame someplace else.

Wiggling witnesses will try to do the same thing to you.  Unless you can control the cross-examination to maintain focus on the wrongdoing, the witness will attempt to shift blame towards someone or something else.  Don’t let him redirect your cross-examination.  You’ve got to stay on target and avoid distractions.  Don’t let the witness lead you down a rabbit trail of irrelevant facts, or worse yet, goad you into arguing about the rightness or wrongness of his actions.  You’re never going convince him that he did something wrong, and you’re not going to convince him to change his story.  What you’re trying to do is convince the fact-finder that his story isn’t true.  Instead of debating him or wandering away from your pre-planned topics, stick to cross-examining him about the facts, and you’ll maintain control of your cross.

5.  Know your escape route. Okay, so maybe it didn’t work the time Joey got stabbed. (http://www.youtube.com/watch?v=NyACPmeFBRQ), but most of the time, the show ensures everyone’s safety by having a security team present and a van waiting nearby.  If anything goes wrong (and it often does), the security guards can move into place to stop people from attacking each other, and the host can move the client into the van so they can escape to “Cheaters HQ” or wherever their safe location is hidden.

If your cross-examination goes off the hinges, you’ll need a safe escape, too.  Have three well-scripted, bullet-proof (aka “Objection Proof” and “Wiggle Proof”) questions that will let you end on a high note.  These questions don’t need to be too dramatic, they just need to let you get three quick “Yes’s” in a row so that you finish your examination looking like you’re in charge of the situation.

Sure, it’s trash TV, and yes, it’s probably going to look out of place on your TiVo list next to whatever “intelligent” TV shows you normally watch, but watch a few episodes of Cheaters and you’ll learn more about the human drama than you can learn in any law book, as well as a few valuable lessons about cross-examination.  Enjoy!

Have you ever dreamt of conducting a “perfect” impeachment during cross-examination?  You know, the type of cross-examination that usually only happens in the movies,  impeaching the witness by pinning down their in-court testimony, and then calling them a “liar” when you confront them with undisputed proof that shows their statement is false?

Almost every lawyer I know salivates at the prospect of impeaching a witness like that.  But before you start calling the witness a “liar,” let me share with you a lesson I learned from a Jedi Knight.

Just in case you’re one of the four people on the planet who’s never seen the Star Wars trilogy, let me give you a little background.  Our story starts “a long time ago, in a galaxy far, far away…”  In the first movie, Luke Skywalker is asking the Jedi Knight, Obi Wan Kenobi, about his father:

Luke Skywalker: How did my father die?

Obi Wan Kenobi: A young Jedi named Darth Vader, who was a pupil of mine, was seduced by the Dark Side of the Force.  He betrayed and murdered your father.

A clear and simple explanation, right?  But in the next movie, The Empire Strikes Back, Luke confronts Darth Vader.  During their light saber battle, they have this exchange:

Darth Vader: “Obi Wan never told you what happened to your father.”

Luke Skywalker: “He told me enough.  He told me you killed him.”

Darth Vader: “No — I am your father.”

So which is it?  Did Vader kill Luke’s father?  Or is he Luke’s father?  (I can’t believe you don’t know this stuff already.  It’s a heck of a lot more important than what happened to Mrs. Palsgraf on the Long Island Railroads!)  Luckily, our story doesn’t end there, and in the third movie, Return of the Jedi, Luke gets the answer to his question.  He returns to finish his Jedi training and asks Yoda if Vader is his father.  After Yoda confirms that Darth Vader is Luke’s father, Luke has this conversation with Obi Wan:

Luke Skywalker: Why didn’t you tell me?  You told me Vader betrayed and murdered my father.

Obi Wan Kenobi: Your father was seduced by the Dark Side of the Force.  He ceased to be Anakin Skywalker, and became Darth Vader.  When that happened, the good man who was your father was destroyed.  So what I told you was true.  From a certain point of view.

Luke Skywalker: A certain point of view?

Obi Wan Kenobi: Luke, you’re going to find that many of the truths we cling to depend greatly on our own point of view.

And that statement brings us to a valuable cross-examination lesson.  Just because the witness says something that you can prove is false, does that mean the witness is lying?  Maybe, maybe not.  But even if he is, before you bring out the heavy ammunition, ask yourself if you really want to drop the “L” word on your jury.

You don’t necessarily need the jurors to think the witness is lying, do you?  All you really need is for them to disregard his testimony, right?  It doesn’t matter why they disregard it, just so long as they do.  So why take on an extra burden for yourself?  And that’s why Obi Wan’s statement is so valuable.  If you can come up with a comfortable way for them to disbelieve his testimony, that’s all you need to do.

What Obi Wan is saying is that you don’t need to prove that the witness lied to the jurors, all you need to do is show that the witness was mistaken. If you can show the jurors that this witness’s “truth” is based on his own point of view, and his point of view differs from what really happened, the jurors can disregard the witness’s testimony, without being put in the uncomfortable position of having to call him a “liar.”

You probably already know that most jurors don’t like to think that witnesses are lying to them.  Most jurors have a difficult time believing that a witness can take the stand, raise his right hand, promise to “tell the truth, the whole truth, and nothing but the truth,” but then look the jurors square in the eye and lie to them.

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us.  But jurors don’t think like that.  Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them.  (Yes, they even expect 10x convicted felons to tell the truth.)  If you attack a witness’s testimony by calling him a liar, you’re going to need to prove that he lied.  If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

Before you plan your next cross-examination, ask yourself if you need to prove the witness is lying.  Is there an easier way to discredit his testimony?  Can you show the jury that his point of view conflicts with reality?  If so, consider making things easier for your jurors.  They may still decide to call him a “liar” in the deliberation room, but they won’t need to do it.  Just show them that they can disregard the witness’s testimony without calling him a liar, and you’ll make it easier for them to return the verdict you deserve.

Done well, cross-examination should sound like a well-told story, occasionally interrupted by the witness agreeing with your cross-examination questions.  In this trial advocacy article, you’ll learn a simple cross-examination technique for simplifying your cross-exam question and improving the quality of your presentation.

The primary difference between direct examination and cross-examination is who testifies.  During direct examination, the lawyer asks open-ended questions and lets the witness do all of the testifying.  But during cross-examination, you are the one testifying.  You choose the topics of discussion, you choose when those topics will be discussed, and you choose how to phrase the statements.  Since you’re going to testify, you’ll want the jury to hang on every word that you say.  Every word you utter should be filled with importance.  But instead, many cross-examinations are filled with superfluous words like these:

Q: You went to the store, correct?
A: Yes.

Q: And isn’t it true that John Smith went to the store with you?
A: Yes.

Q: Larry Mildrige was with you as well, isn’t that a fact?
A: Yes, he was.

Q: Mildridge was the driver, wasn’t he?
A: Yes.

Q: You testified that you were going to buy anti-psychotic medication, weren’t you?
A: Yes, I was.

Almost every cross-examiner falls into the tagline trap.  For some reason, we think that if we don’t include the taglines, our cross-examination questions will be misunderstood.  But you don’t need taglines to turn a leading statement into a question.  Your tone of voice will do it for you and the court reporter knows to put question marks at the end of your statements.  There’s no need to pollute your cross-examination with taglines or introductions.  Taglines dilute the power of your statements because they don’t add anything of substance.  To improve the effectiveness and persuasive power of your testimony during cross-examination, try reducing or eliminating all of the distracting words in your testimony.  Take a look at the same cross-examination, without the taglines:

Q: You went to the store?
A: Yes.

Q: John Smith went to the store with you?
A: Yes.

Q: Larry Mildrige was with you as well?
A: Yes.

Q: Mildridge was the driver?
A: Yes.

Q: You were going to buy anti-psychotic medication?
A: Yes.

Isn’t that easier to follow?  Doesn’t it flow more smoothly?  Every single word in the cross-examination helps tell the story.  There aren’t any wasted words.  To help the jury follow your “testimony,” eliminate the taglines, and leave only the words that you want them to remember.

When you go to trial, your goal is to persuade the jurors to vote in your client’s favor, right?  To accomplish that goal, it’s essential that you find out what they’re thinking.  Wouldn’t you like to find out the answers to these questions?

• Do they believe your witnesses?
• Do they believe your opponent’s witnesses?
• Do they have doubts about your theory of the case?
• Do any of the witnesses have credibility issues?
• Do they understand technical issues you’ve raised?
• Are they following the presentation of evidence?
• Are they unclear about any testimony?
• Are they misunderstanding any terms your witness used?
• Are they confused?

If you could learn the answers to those questions, you could tailor your cross-examinations, alter your direct examinations, or change your presentation of evidence to ensure that the jurors listened to you and your witnesses.  But unless you’ve got Professor Xavier (the telepath from the X-Men) on your team, is there any way to discover what your jurors are thinking?

Actually, there is.  One of the easiest ways to learn what your jurors are thinking is by letting them ask questions during trial.  By listening to the questions they pose, you can quickly decide whether you need to clarify a witness’s testimony, whether you pursue a line of questioning, or whether you should back away from an impeachment topic.  By letting jurors ask questions, not only will you gain insight into what they’re thinking, but you’ll also gain a few additional benefits:

Benefit #1 – Clarity. Asking questions allows the jurors to clarify information. You don’t want the jurors to get hung up on simple issues.  Let them ask questions to clarify simple issues (”What does ‘ancilliary’ mean?”  “How many officers were called to the scene of the crash?”  “What was the effective date of the early termination clause referred to in the contract?”) and they’ll be able to focus on the more important issues and themes in your case.

Benefit #2 – Better Listeners. When jurors are allowed to ask questions, they’re forced to listen more intently so they can form their own follow-up questions.  Better listening leads to better retention and better comprehension, which is essential to a meaningful deliberation process.

Benefit #3 – More Involved Jurors. Finally, jurors who are allowed to ask questions feel like they’re more involved in the process.  By having more of an ownership interest in the trial, it’s easier for them to remain interested and focused throughout a lengthy trial.

With all of these benefits, you’d think that juror questioning would be an integral part of jury trials, right?  Unfortunately, questioning by jurors is still relatively rare.  Here are the four primary objections that many lawyers (and judges) have against juror questioning:

Objection #1 – Prejudice. As a trial lawyer, you know that it’s impossible to “unring the bell” or “put the toothpaste back in the tube” after an improperly prejudicial issue has been raised.  That’s why many lawyers don’t want to give jurors the opportunity to ask about impermissible topics (”Doctor, didn’t you have an insurance policy to cover this loss?”  “Officer, has the defendant ever been charged with other crimes?”)

Objection #2 – Argumentative Questions. Trial lawyers are prohibited from asking argumentative questions
(”Why don’t you stop feeding us a line of bull and tell us why you really decided to run from the cops?”), but what do you do when a juror asks a question prohibited by the rules of evidence?

Fortunately, with a good questioning process, these first two objections can be eliminated.  However, there are two additional reasons why lawyers object to juror questioning:

Objection #3 – Meeting the Burden of Proof. How upset would you be if your opponent failed to ask about an essential element of your case, but then Juror #5 asked a question that proved the essential element and killed your chance for a directed verdict?  Hopefully, this scenario will be relatively rare, since you probably won’t encounter many lawyers who are that stupid.

Objection #4 – Premature Deliberation. The final objection lawyers have to juror questioning is that they’ll begin deliberating before they’ve heard all the evidence in the case.  However, this isn’t really a valid objection to juror questioning, because the jurors will ask the questions to themselves. regardless of whether or not they’re allowed to ask the questions aloud.

If you’re going to allow your jurors to ask questions, here’s a simple procedure to minimize the risk of improper or objectionable questions:

Step 1 – Put it in writing. You don’t want the jurors shouting out improper questions during the middle of direct examination, so have the judge tell the jurors to write their questions down on a piece of paper.  Here’s how Florida judges instruct jurors about questioning during criminal cases:

“After the attorneys have completed their questioning of the witness, I will give sufficient time for the juror to write the question on the paper which you have been provided, fold it and give it to the bailiff, who will pass it to me. Please do not show your question to anyone or discuss it with anyone.”

Step 2 – Review the Questions. Once the questions have been submitted to the judge, they need to be analyzed to determine whether or not the question may be properly asked.  The judge should call the attorneys to the bench to give them the opportunity to object to any improper questions.  The jurors should be told that their questions will not be asked unless they are legally permissible.  Once again, here’s how Florida judges instruct jurors on this issue:

I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence and procedure that control the attorneys’ questions. If I decide that a question may not be asked under our rules of evidence or procedure, I will tell you. Otherwise, I will direct the question to the witness.

Step 3 – Ask the Question. After the judge determines that a question is proper, the question is posed to the witness.

Step 4 – Follow up. Finally, both attorneys are given an opportunity to ask follow-up questions, to clarify issues raises by the jurors questions.

In your next trial, your jurors will have questions.  They’ll either ask their questions during trial, or they’ll ask their questions and make up answers during deliberations.   It’s better to know what’s on their minds before they deliberate, so encourage the judge to let them ask questions during trial.  You’ll be glad you did!

The prior inconsistent statement.  Most cross-examiners love prior inconsistent statements.  If you were to create a “top ten” list of methods for impeaching witnesses, prior inconsistent statements would rank near the top.  If you’ve ever caught a witness in a genuine inconsistency (”Today you testified that the light was green, but in your deposition, you testified the light was red…”), you understand how effective the impeachment can be.  But be careful.

Not all prior inconsistent statements are created equal.

Unfortunately, many trial lawyers don’t understand that.  They treat every prior inconsistent statement as if the witness was admitting to perjury.  You’ve seen these lawyers in court, screaming “Were you lying then, or are you lying now?!?” while attacking the witness for a trivial inconsistency.

But not you.  You know better.  You recognize which inconsistencies are major and need to be highlighted or paraded before the jury.  You recognize that other inconsistencies are minor, and know that it may be sufficient to mention them once before letting the issue go.  You also recognize that some inconsistencies are trifling or inconsequential, and you know to ignore them.  As a master cross-examiner, you need to recognize the difference, and know how to react.  To help, here are some important questions to ask yourself before you leap on the prior inconsistent statement:

Question #1: “Is the witness doing his best to be honest?”

Just because the witness makes a mistake, it doesn’t mean he’s lying to you.  In fact, many jurors believe that if a witness doesn’t make any mistakes while testifying, his testimony might be too good to be true.  Every witness will make some mistakes while testifying.  Most of the mistakes are probably attributable to nervousness.  Jurors understand that.  They know that the courtroom is an intimidating place, because they felt nervous, too, when you questioned them during jury selection.  If the witness is mistaken, rather than lying, you may not want to press too hard on the inconsistency.

Question #2: “Is the inconsistency central to my case, or is it a tangential issue?”

You probably know all the tricks about setting traps that force witnesses to admit to trifling inconsistencies, but should you use them?  When you harp on tangential inconsistencies, the jurors may think that you’re nitpicking.  Jurors may think that you’re over dramatizing the trivial inconsistencies because you don’t have a real case.  After all, if you had a real case, you would focus on that, rather than the trivial tangential issues.  If the inconsistency isn’t central to your case, it may not be worth mentioning.  (Of course, sometimes a tangential inconsistency can become a central issue in the case.  See also: the “N” word, O.J. Simpson trial, and Mark Fuhrman)

Question #3: “Is it a true inconsistency?”

During direct examination, the witness testified that he arrived home at “5 o’clock.”  However, he told the police officer he arrived home at “4:58 PM.”  Is that a true inconsistency?  Use your common sense when evaluating the strength of inconsistent statements.

Question #4: “Is it a minor inconsistency — or is it just the tip of the iceberg?”

Don’t automatically disregard minor inconsistencies.  It may not be a minor inconsistency — it may be the tip of the iceberg.  You’ll need to use your 6th sense to determine which it is.  If you think the inconsistency is just the tip of the iceberg, you’ll probably appear to be “nitpicking” for awhile before you strike gold.  Keep an eye on your jury while you progress, so you can constantly re-evaluate how you’re doing and determine if you should continue to press forward.

Prior inconsistent statements can be a devastating form of cross-examination, but that doesn’t mean you should harp on every inconsistency.  Understanding the difference between important inconsistencies and trivial inconsistencies will set you apart from the other lawyers in your courthouse.  Evaluate each inconsistency by asking these four questions, and your next cross-examination will be a success.