Here’s the BAD NEWS: You can’t get your hands on a copy of The Complete Trial Lawyer System anymore.  Demand was so great that we completely ran out of physical inventory.  Every single copy has been shipped out, and since the binders are custom-made, we have no idea how long it will take before we can get our hands on any more copies.

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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. Palsgraff!)  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.

Prof. John Henry Wigmore argued that “Cross examination is the greatest legal engine ever invented for the discovery of truth.”  But that’s only true if the cross-examination is conducted by a skilled examiner.  Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it.  In the hands of a master craftsman, cross-examination can achieve remarkable results.  In the hands of a novice, it can often cause more harm than good.

To become a quality cross-examiner, you must master the ability to critically listen to  witness’s answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you’ll need to recognize is the “non-answer.”  Expert witnesses and well-prepped witnesses are the best masters of the “non-answer.”  At their finest, their responses don’t even appear to be evasive.  They’ll make it sound like they’ve answered your question, but in fact, they’re completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear. 

If you’ve ever watched a political interview, you’ve probably seen “non-answers” in action.  The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:

Q: Are you prepared tonight to say that you’ve never had an extramarital affair?
A: I’m not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I’m not prepared to say that about anybody…  I have acknowledged causing pain in my marriage…

Some of your witnesses have mastered the art of giving non-responsive answers.  It’s your obligation as a cross-examiner to ask follow-up questions and extract your desired answer.  Here are some examples of “non-answers” you should listen for:

Non-Answer #1: Completely Avoiding the Issue

Q: Does this skirt make me look fat?
A: I love you.  (Or you can try Dave Barry’s response: Sticking a fork in one or both eyes to avoid answering… it’s much less painful!)

Non-Answer #2: Describing Expected Procedures

Q: Did you request a CAT-scan?
A: It’s normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

Non-Answer #3: Saying What You Will Do or Hope to Do

Q: Do you support higher salaries for judges?
A: I think that’s an important issue that we should address.

Q: How soon will you have the weaponized virus contained?
A: We’re doing everything we can.

Non-Answer #4: Answering a Question with a Question

Q: Did you lock the store before you left that evening?
A: Why wouldn’t I?

Non-Answer #5: Telling What They’d Normally Do in the Situation

Q: Did you check for tire wear patterns?
A: Normally, I would…
Q: No, what did you do?

Q: Did you call for backup before approaching the car?
A: Usually, in these situations…
Q: What specifically did you do in this situation?

Non-Answer #6: Describing What Others Did

Q: Did you find any drugs in the car?
A: We found several packages of cocaine in the center console.
Q: No, what did you find?

Q: Who located the firearm?
A: Our SWAT team found the firearm in the back bedroom.

Non-Answer #7: Guessing or Supposing

Q: Did you read the warning label?
A: I’m pretty sure I would have.

Non-Answer #8: The Speech or the Argument

Q: I’ll ask for the fourth time. You ordered –
A: You want answers?
Q: I think I’m entitled to them.
A: You want answers?
Q: I want the truth!
A: You can’t handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives…You don’t want the truth. Because deep down, in places you don’t talk about at parties, you want me on that wall. You need me on that wall.  We use words like honor, code, loyalty…we use these words as the backbone to a life spent defending something. You use ‘em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I’d rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a damn what you think you’re entitled to!

Non-Answer #9: Half-Truths or Half-Answers

Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.

Q: Did you order the Code Red?
A: I did the job you sent me to do.

To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately.  Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question.  Once you recognize what they’re trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.

One of the best ways to handle non-answers is to simply ask your question again.  For a fun example of someone doggedly refusing to answer a question, watch this clip from the BBC to see Jeremy Paxman’s interview of Home Secretary Michael Howard.  In the interview, Paxman asks the same question twelve times.  How many times does Howard actually answer the question?  You’ll need to watch the video to see!

http://www.youtube.com/watch?v=BklT7Qy07Is

As Shakespeare would say, “Don’t gild the lily.”

When a witness gives you a favorable answer (regardless of whether its during direct examination or cross-examination), be wary of trying to improve upon it.  Too many times, attorneys have tried to lock the witness down on a point that they’ve already won, only to have the witness improve upon the answer and cram it down the attorney’s throat.

For example, let’s say you represent a man accused of Trafficking in Heroin.  The government is alleging that he was part of a conspiracy to sell 500 grams of heroin.  Your client was a small part of the conspiracy, and only dealt with one person, a confidential informant.  During direct examination, the prosecutor asks the informant, “Was Desmond Llewellyn Witherspoon present during the negotiations?”  To everyone’s surprise, the witness says, “I don’t think so.”  The prosecutor (an overworked young man with 6 months of experience) doesn’t know what else to do, and so he sits down.

The wise defense attorney would say, “No questions” and shut up.  But some cross-examiners would attempt to lock the witness’s favorable answer down.  The result is that they impeach valuable information:

Q: You told the prosecutor that you didn’t think Desmond Llewellyn Witherspoon was present at the negotiations.

A: That’s right, I don’t think he was.

Q: So Desmond Llewellyn Witherspoon didn’t have anything to do with the negotiations?

A: I don’t think so.

Q: And Desmond Llewellyn Witherspoon didn’t set up a deal to sell 500 grams of heroin, did he?

A: I don’t think so.

Q: You keep saying, “I don’t think so,” but could you clarify for us.  [pointing towards his client] He didn’t have anything to do with the heroin negotiations, did he?

A: Oh, him?  Pookie? Yeah, Pookie was the guy that set up the entire deal.  He called me, negotiated the prices, raved about the quality of his product, told me he could get an unlimited supply of heroin because he’d killed some guys down in Colombia and had an entire border patrol on his payroll or something like that, so he had the entire region under a stranglehold and could export as much heroin as he wanted.  Yeah, Pookie was the kingpin of the entire organization.  But that name you keep mentioning, “Desmond Llewellyn Witherspoon?”  I don’t think I’ve ever even heard the name before.  Your guy never told me his real name, everybody just called him “Pookie.”

Most often, attorneys encounter this problem during cross-examination.  They’ll cross a witness and unearth a diamond in their testimony.  But then, they do the unthinkable, and try to polish it while the witness is still on the stand.  The results, invariably, are disastrous.

Q: Did you hear anything?
A: Nope, not that I remember.

Q: Are you sure?
A: Yeah, pretty sure.

Q: [rubbing his hands in glee] You didn’t hear anything at all?
A: Well, nothing except for [bad fact that seemed innocuous to the witness]

When you uncover favorable testimony, consider switching to another line of questioning, or perhaps even quitting entirely and sitting down.  It’s okay to quit while you’re ahead.  To inquire further may ruin the presentation, or even elicit damaging information.  If you keep going, you give the witness an opportunity to explain his answer.  When you get a good answer, don’t push the witness on the issue.  Just take your good answer and go home.

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!