I’ve often watched lawyers in trial frantically writing down whatever the witness is testifying to on direct examination. The lawyer writes the witnesses answers on one side of a piece of paper and then writes comments on the other side. Head down, face buried in his/her pad, pen frantically writing, the lawyer thinks that he’s doing his job. He’s not.
In the middle of trial is no time to become a stenographer or scrivener. Sure, you want to note some things that the witness is saying to remember them or have them available for cross examination or closing argument but not everything. If you’re doing that, you’re depriving your client and you of one some of your most important senses — the ability to see and listen.
In the middle of our white collar criminal trial, this part of a killer cross examination, i.e., listening and watching during direct, proved itself invaluable. As the witness was testifying, he seemed like he’d be difficult to break or neutralize. But the more I listened to his tone and watched his demeanor, I could sense that he was hiding something: his axe to grind with our client. He had asked for a raise and hadn’t gotten one. He tried 3x and was denied. Then he decided to change his “tone” he testified. It dawned on me, by watching and listening to him that his demeanor was likely what had resulted in him not getting promoted but instead of blaming himself, he blamed our client. Because my head wasn’t in my legal pad, I could use my senses to pick up on it and I did.
On cross examination, his tone and demeanor was revealed:
Q: You’re not acting differently in court than you do elsewhere are you?
Q: So this is how act at work too, right?
Q: You raise your voice and get loud then right?
A: I’m passionate.
Q: You don’t think your employer is allowed to consider your demeanor and tone when deciding whether to promote you?
A: I should be treated the same.
Q: So you’d deny your employer the right to consider your demeanor and tone?
A: I should be treated equal.
Q: So you feel that you weren’t?
Q: And you blame (our client) for that, right?
A: He’s the one that didn’t give me a raise.
Q: And you blame him?
By listening and watching, I could pick up on his animus towards our client. No one would seriously think he was well suited for a job – his demeanor was horrible. By watching and listening, we were able to pick up and develop the basis for this witnesses bias and even highlight to the jury how his behavior in court likely resembled his behavior at work.
A killer cross examination requires listening and watching and taking your face out of your notepad so that you can use all of your senses.