Neil Rockind, author of killercrossexamination.com, shares tips and real world examples of cross examinations to help lawyers develop a Killer Cross Examination | Using Real Time
Many trial teachers and instructors teach students to be “in the moment” yet having watched many of the lawyers who were educated in this fashion ply their trade, I am convinced that too few actually practice what they learned or preached. Many lawyers think that being in the moment means being emotionally in touch with the witness or their own feelings, etc. I view it differently. In a killer cross examination, “being in the moment” is actually being in a conversation with someone and actually reacting to the information that the other person is saying and the manner in which they sharing it. Rather than referring to it as “being in the moment,” I prefer to think of it as using “real time” and encourage lawyers to react in real time. This is critically important in a killer cross examination: react to things being said and done in real time. Think about it as if there was little opportunity to think — imagine yourself in a tennis match in which your opponent hits a shot cross court. You are going to “react” in real time to the cross court volley, chase down the ball, size up where your opponent is on the court and attempt to hit a winner. In some circumstances, continuing with the tennis analogy, you make not even have time, in real time, to try and do anything other than just chase the ball down and attempt to hit it. One thing I know, however, is that if your opponent hits the ball to your right, you’re going to move left — if he hits a drop shot, you’re going to run towards the net, not back up behind the baseline. “Real Time” reactions.
A recent cross examination that I conducted in a contested DUI/OWI-Accident case is a prime example of a real time reaction to a witness’ testimony. In this case, our client was accused of operating or driving while intoxicated. An accident was reported involving a red Jeep. We believed that the officer’s stop of the vehicle and detention of the driver was unlawful. Our principle argument rested on the fact that the officer that made the stop did not identify or even attempt to identify the most significant detail given to him by dispatch: the involved vehicle should have heavy damage. It was my position that the police should have done whatever was minimally intrusive to our client’s constitutional rights and that he must, before approaching and communicating with our client, look at the vehicle to see whether it matches that given by dispatch: a vehicle with heavy damage that was in an accident. Let’s take a look:
In this passage, you’ll see that I set the officer up with my premise, i.e., that he should take the least intrusive means when making a traffic stop. By taking the least intrusive means, the accused’s constitutional rights are least impacted. I pose this to him in a way that is hard for him to deny:
After getting him to agree that the least intrusive means test, I walk the officer down the path, taking small steps — first asking him to agree that the least intrusive means would be to identify a car, matching color, matching make and matching “heavy damage.”
Now I move in for kill, i.e., that the officer did not attempt to take the least intrusive means, because he failed to identify whether the vehicle that he was stopping had “heavy damage.” However, as you’ll see the officer attempts to give me a hard time.
Here is how he tries to give me a hard time by saying that he “was behind the vehicle,” an answer to a question that I never asked. In the moment, in real time, I pursue it — reacting to not getting the answer to my questions:
As you can see, he was persistent — he was trying to dodge the issue but I was not letting go. I was listening and reacting in “real time” to what he was saying: him citing to my suggestion as “unreasonable” was too calculating and argumentative. Just like I would with someone in my family who was trying to ” bs” me, I reacted in real time to what the witness said. Him claiming that it was unreasonable suggested to me that he had thought about doing as I suggested but deciding against it — accordingly, I questioned about just that:
Rather than going away, crawling into a hole or feeling like the witness was getting away from the point that we were making, in real time I considered the answer, the implications of it and questioned him: he was offering a justification for not having done something and by doing so he was necessarily implying that he had thought about it but decided against it. I ask him, “you’re giving a justification … which suggests that you thought about it but just didn’t do it…?” I was listening, thinking and responding. My opponent had hit a volley and I was chasing it down and then going to return it for a winner. I didn’t stand there stuck on some note page with pre-printed questions. I was live, in real time and reacting. This is part of a killer cross examination.
Of course, the witness cannot concede that point for fear of looking stupid. He knows it too. So when I ask him the question, he is stuck with having to agree and … he did:
Trapped with a real time, in time confrontation, i.e., challenging his assertion with logic and reason, he returns to the point that we were trying to make with this line of cross examination and concedes the point:
This is just one example of a killer cross examination: one that controls the witness but one that is dynamic where the questioner responds in real time to comments and testimony offered by the witness. The witness was trying undermine our arguments and help the government’s case. He knew he was trapped when I questioned him about the least intrusive means and with questions that inspecting whether the vehicle had damage was “least intrusive.” He knew he was cornered and rather than concede that point, he tried to argue with me: “that would not be reasonable,” he responded. Yet, were he to have made that judgment on the road, that would necessarily mean that he had thought about it and decided not to check whether the car had damage. I questioned him about that inference and he knew that in the process of trying to wiggle out, my grip had become tighter.
Killer cross examination is a fluid, dynamic, in time, real time style of cross examination that involves preparation, knowledge, wit and reason. It is my style of cross examination. Maybe you can add some elements of this type to your cross examinations as well. Good luck.