During direct examination, he cried, stuttered and had difficulty getting his words out. He appeared truly traumatized. Undeniably, the young man on the stand had been injured and injured badly. He was making a compelling case while testifying and he was sympathetic as well. What kind of cross examination would be effective? A dynamic cross examination in which I was actually and truly in the moment and by “in the moment”, I mean the actual moment listening to what the witness said and reacting in real time. “Dynamic” means characterized by constant change, activity, or progress. A cross examination of the victim in this case needed to be dynamic, i.e., live, organic, changing and reacting. Ask those that witnessed my approach to him and they’ll agree that it was just that — dynamic.
Tell The Jury What You Want
Every lawyer has encountered the witness that adds on to his answers to his questions. The add-on’s are potentially devastating and unexpected — usually declarations that only serve to assist the state or government. Some lawyers will try to “control” the witness or shut the witness down. That is one approach. That was not my approach — I chose to handle things dynamically. Here is an example:
Q: rules are in place for your safety and the safety of others, right?
A: yes. Like don’t cross 5 lanes of traffic without looking because you couldn’t wait 30 seconds nearly ending my life … (long emotional outpouring monologue)
Q: is there something that you want to tell the jury because that wasn’t an answer to my question? Go ahead tell them whatever you want…
A (diatribe about life, death, our client, etc)…
Q: anything else?
A: (more diatribe)…
Q: is anything else that you want to say?
A: no. I think I’m done.
Q: you’d agree that I’ve given you a chance to say whatever you want, right?
Q: and you’ve don’t that?
Q: now that I’ve don’t that, I want to return to my questions, do you understand?
Q: as I was saying, rules are in place to protect you and others?
Most lawyers would be sweating and panicking at the ad-libbing and would have wanted to shut it down. I did the opposite. In the moment, evaluating the situation, I accepted the victim’s energy and absorbed it. I invited him to say what he wanted, unafraid of what he said it would say. He was hurt, upset, offended, mad and wounded and he wanted to speak. I believed that the jury would not appreciate me cutting him off. I was always wary of wounded animals and treated him similarly: I wanted him to expend his energy now. And so he did. No trial skills group or book would recommend this approach. To the contrary, most would want me to take control. I did the opposite.
The Setup: Rules
Some new lawyer groups and skills training groups claim that they have a new approach to trials: focus on the rules and how the opponent violated them. This is not a new tact. In fact, David Ball, a jury and trial consultant and author has advocated this for years: the rules. Focus on the rules and how the other side broke them. This was the setup for my cross examination and one of the reasons why I allowed him to vent early on–I knew what was coming.
I questioned him about the rules, eg, rules are in place for you safety, the safety of others, it is important to follow those rules and you follow the rules. He readily agreed.
The Post: The Medical Records
He was claiming that he wasn’t speeding and I wanted to undermine that testimony. After he denied speeding, I planned on proving that his claim that he wasn’t speeding and that he follows the rules was untrue. Everyone who follows me knows that I advocate “a post” on cross examination. Find something fixed in the case and then tie the witness to it. The victim’s medical records was that post.
The records revealed that the victim broke hospital rules repeatedly, rules to protect him and others. He changed his own treatment, rejected treatments, disrespected the staff, smoked in the hospital, had sex in the hospital room and was partying in the room. I knew that he’d have to deny or agree with those notes. Either way, I was good.
I began with a challenge: your testimony that you follow the rules was untrue, wasn’t it? He denied it. He then, when confronted with the records, denied the truth of the records. He blamed the staff, accused them of lying and of fraud in record keeping.
In the moment, every time he added new allegations to his denials, I reminded him that I was going to test him on each. Calmly, never raising my voice and slowly, I pulled every strand of his lies apart. I reminded him that he was accusing staff of fraud and misconduct. He was merciless in his allegations against them. He was not believable.
One last thing that I did was, after I realized that he was fighting with me and being assertive and firm, I reminded him that he was responding differently to me than to the state: “you recognize that your demeanor is different with than it was with the state?” He was stuck: like a deer in the headlights.
These approaches and bits on cross examination were part of a dynamic cross examination. Cross examining is challenging because you need to be in the moment, dynamic and quick. You need to be able to think on your feet, use the resources available to you and quickly process the information in order to respond to the witness.
Eveyone in court, including the judge, understood that I had little or no defense in this case. However, I made a defense out of cross examination, a dynamic cross examination.