THE TRIAL PRACTICE TIPS (CROSS-EXAMINATION)

GROUP 8: Joshua Paguican, Tom Calatrava and Kyndell Hilario

A. Cross-Examination: Seven Essential Impeachment Techniques

Assess and adjust. What type of witness are you dealing with? Basically honest? Prone to exaggeration? A liar? Know your case and the witness well enough to be able to adjust your cross-examination approach on the fly. Lock the witness into testimony. If you don't pin down witnesses to their inaccurate versions of the facts, they're apt to wriggle free later. Establish a motive. If you are trying to make the witness out to be a liar, you'll be more successful if you establish the witness has a motive for lying. Paint a picture for the jury. Establish your points fact by fact, allowing the jurors to reach the one obvious conclusion on their own. Close the exits. After locking witnesses into their own incorrect version of the facts, you also have to bar the escape routes. Try to imagine how you would do it if you were the witness. Surprise. Don't allow witnesses to know the precise objective of your impeachment until their testimony is locked down and the escape routes are closed. Visuals and other tangible things. If you can add visual aids to your impeachment, do so, as it makes you more persuasive and aids the jury in remembering.

B. Deposition Tip: Help with Sniffing Out the Liars While there is no surefire on-the-spot way to sniff out dissemblers, there are some helpful tactics for uncovering untruths. Liars often give short or one-word responses to questions, while truth tellers are more likely to flesh out their answers. According to a 2003 study by DePaulo, a liar provides fewer details and uses fewer words than an honest person, and talks for a smaller percentage of the conversation. Skilled liars don't break a sweat, but the rest of us get a little fidgety. Four possible giveaways: shifty eyes, higher vocal pitch, perspiration and heavier breathing. Of course, not everyone who doesn't meet your gaze is a liar.

C. Objections to the Form of a Question: A Partial List Lawyers who are defending depositions (or learning how to to defend depositions) sometimes like a handy list of form objections. If the form objection is not made during the deposition, this type of objection is normally waived. Here are some typical form objections:

"Vague." The question is unclear. The question might be too long, some of the key words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.") "Compound." The question is actually two questions.

Example: "Did you find the cancelled check on the ground and take it with you?"

"Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.

Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"

"Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer. "Assumes facts not in evidence." The question contains a factual statement that has not yet been established.

Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)

"Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.

"Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.

Example: "When you proceeded into the intersection, the light was green, correct?"

"Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.) "Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.

Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.) Some common objections that are not to the form of the question include irrelevance and hearsay.

D. Cross-Examination: Tips from a Pro Some other general tips, including the following:

"If you can score ten points in cross-examination, prioritize and only use five of them for maximum impact." "Never belabor your point so that witnesses can gather themselves and finally explain an answer." "Control the testimony by your questions, not the witness's answers, especially with expert witnesses." "Do not change your personality from direct unless it is an honest disbelief from the testimony or actual surprise. False reactions are obvious to the jury."

E. Cross-Examination: A Refresher The five steps are fully explained in the post--

Determine the goals. Divide goals into individual topics. Document the cross examination. Use Role Reversal. Divide the cross examination into chapters.
F. Basic Cross-Examination Principles Again, these basic principles are explained in the full post--

Make big points and ignore the details. Tell the jury what you just did. Approach cross examination from a big picture viewDont answer every defense issue. Be consistent and stick to the main story. Meet major defenses head on. The right to ask leading questions is a gift. Use it. Listen, listen, listen. When impeaching, make sure you lay a foundation first. Be Brief Make your point and quit. Be firm but fair.
G. Impeachment During Cross: What Really Matters Impeachment is not about convincing a witness to change testimony; it is about showing the jury that a witness has changed his or her story. Highlighting prior inconsistent statements. Show that the witness has lied, changed his or her story, or testified differently in the past. Impeachment is about discrediting a witness. It is not about showing that someone is pond scum; it is not about histrionics or convincing a witness to change testimony. Impeachment is showing the jury that a witness has changed his or her story. Save everything else for closing arguments.

H. QUICK LIST OF THE "ESSENTIAL RULES" OF CROSS-EXAMINATION.

Never ask a question to which you do not know the answer--unless it doesn't matter, or you have nowhere else to go.

Always listen to a witness's answer before asking your next question. Never ask the one question too many that will allow the witness to explain away a damaging answer he's already given. Forget Perry Mason. The purpose of cross is not to win the trial at once, so much as lay the foundation for closing argument, or for the testimony of other witnesses. Know when you've accomplished enough and sit down.

I. Cross-Examination at Trial: Just Say No If you try it, something bad is bound to happen--

You'll overemphasize the testimony of a witness your opponent has chosen, by allowing a re-telling of his story on cross, then again on direct; You'll allow the witness your opponent has chosen to correct any mistakes (or fill any gaps) left over from direct; You'll allow the opposing lawyer to correct any mistakes (or fill any gaps) when he continues on redirect; You'll make one of those errors that are easy to make on cross, like asking a question "that will ruin the case for you."

J. Cross-Examining the Liar at Trial: Two Absolute Prerequisites The two requirements that must be present before you even begin to think about trying to take on a liar at trial--

First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand"; Second, you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

K. Craft a Cross-Examination Using the Witness's Own Documents Here's a useful way to conduct a cross-examination in document-intensive cases:

Choose statements from documents associated with the witness that are helpful to your case (e.g., from a witness's internal memo, "our division is weaker than our competing divisions by 25%"); Put these statements in the order you want to address them in your cross- examination; Turn the statements into leading questions, (e.g., "Your division was 25% weaker than your competitor divisions, wasn't it?"); If the witness disagrees with the statement, use the document to get the witness back on track.

L. Tip for Spotting Liars: Ask for the Story in Reverse The best way for police detectives to spot liars is to "make the suspect repeat his or her version of events in reverse order." The idea is that a made-up story is difficult enough to remember in the right order. If asked to remember the story in reverse, the witness is bound to make mistakes. The technique would seem to work best in a case that involves first, a central, key narrative like a car accident or a work injury and second, a witness who has a strong motive to lie. M. What to Do When Your Cross-Examination Fails What can you do when your cross-examination fails not because of your own incompetence, but because the witness is so, well, slippery? One answer: During closing, talk about what happened. You might even call the witness a "greased pig." N. Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial Your preparation for depositions will generally be much easier if you think about the ways the testimony will be used at trial. This tip applies to most pretrial discovery: it's almost never an end in itself, but something that will be used later in front of a jury. It's no accident that the ins-and-outs of pretrial discovery often make more sense after a lawyer has witnessed some actual trials. When trials are scarce, even reading trial transcripts helps. The looking-ahead-to-trial tip can be especially useful for deposing your opponent's experts. If you often rely on outlines prepared by other lawyers, this method will also help you understand why it's important to ask the questions lawyers typically ask when deposing experts. How do you look ahead to trial? Even though every trial cross-examination differs in its particulars, most cross-examinations of experts at trial cover the following points-A -- Weaknesses in the expert's qualifications or expertise to render the opinions he's rendering; B -- The expert's lack of preparation to render the opinions he's rendering; C -- Bias; D -- Assumptions the expert is making that will be disproved in your case; E -- Helfpul testimony from the expert that supports your own case.

I've written about these points before. Working from this list, it's easy to see some of the most important areas you'll need to cover when deposing the opposing expert. After all, it's the material you'll get in the deposition that will provide the fodder for the cross-examination. If you do the deposition right, you'll know exactly what the expert is going to say ahead of time, decreasing the risks of cross examination. Keeping the list above in mind, here is an outline of some of the most important points to cover when deposing an expert witness-A-- The expert's qualifications and expertise (and lack thereof) in the particular area he's testifying about; B -- What the witness has done (and has not done) in order to prepare himself to render an opinion; C -- The expert's past work as an expert witness, especially for the side for which he's testifying in your case, including the income generated from work as an expert witness; D -- All the expert's opinions; his support for those opinions; and the factual assumptions he's making to reach those opinions; E -- Points that you will be trying to prove or demonstrate at trial that the expert you are deposing will agree with. O. A Tip for Controlling Opposing Experts During Cross-Examination at Trial When cross-examining the opposing expert at trial, stick to that old adage--leading questions only. Asking questions that call for either a "yes" or "no" is the best way to keep the opposing expert from giving that self-serving speech that he's just waiting present to the jury . . . and which he will present just as soon as you ask, frustrated at your own inability to elicit the testimony you want, "Well, what is your opinion based on?" If you did a good job of deposing the expert before trial, your cross-examination won't be as difficult as it might seem. In fact, it should be constructed entirely of questions you have already asked. Consider this basic outline, which will work in many situations--

Weaknesses in the witnesss experience and qualifications that call into question his authority to render the opinions he gave on direct. Deficiencies in the experts preparation to render an opinion. Assumptions the expert is making to support his opinion that will be disproved in your case. Admissions the expert made in his deposition that support-o your facts and theories, and o the qualifications, competence, and credibility of your expert and his methods.

P. Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First In an earlier post, "How to Cross-Examine at Trial with Inconsistent Statements," I discussed the importance of setting up the impeachment by asking questions that lend validity to the question and answer you are going to use to impeach. The prior post contained some examples of questions that add validity. Here are some others:

You previously gave answers at a deposition; You received a subpoena to attend; That's a court order to come and testify; You had to come to our office and testify under oath; You prepared for the deposition ahead of time; You knew it was going to happen before you arrived; You were not caught by surprise; You came with your lawyer; The same lawyer who is with you today; The same lawyer who has been with you since this case began; The lawyer was there for every one of my questions; You knew what the lawsuit was about; I brought up this topic at the deposition; I asked you under oath, page 119, line 23 (hold up transcript, read answer); That is what you told me; That is what you told me on the day you were called; That is what you told me on the day you were thinking about it; That is what you told me on the day when you knew you were there to answer questions; That is what you told me with your lawyer right beside you; And that is different than what you just told our jury; At the deposition, you said you would tell the truth; That truth is different than what you said today.

Q. A Free Cross-Examination Tip from ATLA Everyone who conducts cross-examination has a script . . . . Whatever that outline is, never follow it slavishly. There is nothing better than seeing your adversary cross-examine your witness and not listen to the answer, thereby missing a critical fact which they could exploit further during the cross-examination. Ask the question and continue to look at the witness until the answer is complete . . . . This information is too precious to save a second or two by looking down to ask the next question. Besides, if you listen to the answer in the broadest sense of that term, you will find that your

planned next question may be different than your outline suggests. It also may well be much more effective than the question you planned in advance. R. Impeaching With Prior Inconsistent Statements The question "How do I maximize my impeachment" arises in a variety of circumstancesbut always, and most criticallywhen it comes time to impeach a witness trial testimony with a prior inconsistent statement, such as a deposition or a writing authored by him. The standard trial advocacy books almost uniformly suggest a single formula for such impeachment. It is a formula which usually works, but to which QEUO&H recommends adding one element, and amplifying another. S. On Cross, Don't Use Adjectives Needlessly When you are cross-examining a witness, you should be careful not to give the witness an opportunity to explain. This is exactly what you'll do, however, if you use adjectives needlessly-Q. "You couldn't see the collision clearly, Mr. Witness, could you?" A. "Yes, I could. I had a very clear view of the collision. I was standing right there when it happened--there no way I could have had a better view." The witness might also reply, "It depends on what you mean by 'clearly.'" In either case, the witness is no longer under your control, and the jury is watching him, not you. Rather than using adjectives, think about the facts that together can stand in place of the adjective, then turn each of these facts into a separate question. It will make your point as clear as possible, will give the jury a visual image, and will keep the witness under your control-T. Cross-Examination: A Three-Step Approach The three-step method for organizing cross is simple enough: "conceptualize the entire case. Ask yourself: 'What argument am I going to make about this witness during my summation?'" "determine what specific factors (attack points) support the argument." "draft particular questions that develop each attack point." U. How to Cross-Examine at Trial with Inconsistent Statements how to impeach with inconsistent deposition testimony: When a witness makes a statement in trial that is inconsistent with his or her deposition testimony, you should first highlight the question that was answered differently at trial. Make sure that the trial testimony being impeached is a direct inconsistent statement with the deposition given before trial. You should then ask the following questions: --Do you remember having had your deposition taken on (state the date)? --Do you remember that a court reporter was present at your deposition? --Do you remember having been sworn in to tell the truth? --Did you tell the truth on that date? (If applicable) --Do you remember having your attorney present at your deposition? After you have set the foundation for the impeachment, then you should ask the witness the following question: "Do you remember having been asked the following question and your giving the following answer." At this point, you should read the question previously asked and the answer given by the witness in the deposition. The article also discusses how to impeach with inconsistent statements in documents. A final section deals with the cross-examination of experts, and concludes with this reminder: "Although there are many ways to effectively cross-examine an opposing expert, you should only choose two or three areas of attack at trial . . . When cross-examining the opposing expert, be prepared, be thorough, hit your two or three areas of attack, expose the expert's weak points, then politely thank the expert and sit down."

V. A Simple Tip for Controlling Witnesses on Cross-Examination A simple way to keep a hostile witness under control is to ask questions that can be answered only one of three ways: "yes," "no," or "I don't know." If given no opportunity to explain, the witness won't try to do it as often. As is true of any good cross-examination, this method requires you to ask very short questions. It's a good habit to get into. You'll use the short questions to lead the witness in the direction you want him to go, rather than the other way around.

W. How to Ask a Leading Question Leading questions should be easy. But have you made the following common error, requiring that you turn one question into two?

Q. It was 2:10 p.m., is that not correct? A. Yes Q. That was a true statement? A. Yes. It's that pesky negative that causes the problem. A better approach would be: Q. It was 2:10 p.m., correct? --or, Q. It was 2:10 p.m.? The last example is often the best alternative. It's simple, direct, and unambiguous.

X. Cross-Examination Tips "Ten Commandments of Cross"-1. Be brief 2. Short Questions, Plain Words 3. Ask Only Leading Questions 4. Never Ask a Question to Which You Do Not Already Know the Answer 5. Listen to the Answer 6. Do Not Quarrel with the Witness 7. Do Not Permit the Witness to Explain 8. Do Not Ask the Witness to Repeat the Testimony He Gave On Direct Examination 9. Avoid One Question Too Many 10. Save the Explanation for Summation