THE TRUTH ABOUT THE ORTHODOXY OF CROSS-EXAMINATION
Robert A. Spanner Email
There are a number of well-recognized truths about how to cross-examine a witness. But experience teaches that these truths are an orthodoxy based on a perception of what goes on during a trial that is at odds with reality, and they put a litigator at a distinct disadvantage against someone who has a different perception and is playing by different rules.
In deciding what rules to play by, the trial lawyer needs to take into account these realities of the courtroom:
• The term trial for the process of determining the truth in a courtroom is an apt one; it conjures up primal images of ordeal and contention. That is what jurors expect, and if the witness leaves the witness box with his testimony intact, the cross-examiner has lost on points.
• A jury, as Vincent Bugliosi once famously said, remembers the tune but not the words. This is probably even more so in IP cases, where the subject matter is often outside the jurors’ personal experience. (In a court trial, the judge is just a smaller jury. The judge can remember some of the words, but not as many as you might think, especially in a case of any length.) Juries are constantly evaluating and assessing witnesses in real time to determine what the truth is, not by considering their testimony deductively but rather by a subconscious process, making tentative decisions about who is winning and who is losing; who is good and who is bad; who is deserving and who is not.
• The holding of a trial means someone has made a mistake. In IP cases, the opposing counsel is usually intelligent enough to understand the law, so the mistake is generally not a mistake of law. And given the stakes in IP litigation discovery is usually comprehensive, so the mistake is generally not based on a misunderstanding of the facts. Rather, the mistake invariably is a mistake of judgment, as to such things as what the preconceptions of the jury will be, how compelling the client’s case is, and how attractive the various witnesses will be.
It is these jury intangibles that will dictate the outcome if the facts are close and the law is close.
The accepted rules of cross-examination are primarily designed to avoid fumbling – but there is a cost. The consequence of limiting cross-examination to the objective of not fumbling makes for an insipid presentation, and if an opponent is using cross-examination to influence these intangible factors every moment while you are not, the opponent may well prevail for that very reason.
Consider these old chestnuts:
EXAMINING FROM AN OUTLINE
The way cross-examination is usually taught, one is advised to prepare an outline along the lines of points to be made in one column and the supporting or impeaching evidence in another. In the greatest elaboration of this teaching, a flowsheet is prepared, anticipating follow-up questions for both an affirmative and a negative response as to each and every question.
Preparing such an outline is an essential discipline. In this manner, the examiner avoids surprise and has every tool at hand to address an inaccurate answer. The question isn’t whether to prepare an elaborate outline; but rather what to do with it.
Most litigators examine from an outline, and some practitioners of this skill are very, very good at it, making the examination seamless. But many lawyers fall into the trap of using an outline as a crutch, fearful that something will be forgotten, and march through the outline in lockstep, barely listening to the witness since it is hard to do two things at once. A number of untoward effects result:
• The examiner is looking at his outline for the next question while the witness is answering; as a consequence, the examiner is only dimly aware of the answer. Information is lost.
• The witness’s answer should drive the next question – not what’s in the outline.
• If the examiner is not watching the witness every moment, subtle (and not so subtle) cues from the witness that the jury is seeing will be missed. Is the witness answering so quickly that it looks like the answers were coached? Is the witness answering too slowly, indicating that the witness is walking through a mental minefield? Does the body language convey discomfort? Is the witness looking to the counsel table for help? If the examiner is looking at his outline and thinking about the next question, he or she will miss these vital cues.
• Breaking eye contact with a witness means losing control of the witness. It is through eye contact on that we communicate dominance, incredulity, amusement, or contempt to the witness, and by these cues shape what the witness says and how he says it.
• A follow-up question half-a-second after a response is ten times more effective than the same question ten seconds later, after looking down at an outline, and the devastating effect of a great question is lost by having to look for it. If it was such a compelling question, why wasn’t it just asked?
• During these brief interludes while counsel is forming the next question jurors’ attention may wander, and they may forget the previous answer, the previous question, the context, or all three. Cross-examination needs to flow; otherwise, it is stilted and ineffective.
• A trial lawyer who is constantly looking down for the next question is not making a good impression. The examiner should be watching the witness and the effect of the testimony on the jury – not looking at a piece of paper. A trial lawyer needs to convey during cross-examination that everything that can be known about the case is known to the examiner, and that what he or she says can be believed. Constantly looking down at one’s outline sends the exact opposite message.
The remedy is to reduce one’s reliance on an examination outline. This may be a horrifying thought, given the complexities of IP litigation. How will you know what to ask next? The answer is that you just will (once you overcome the anxiety of not being able to question out of an outline) – just as you knew what to write down in the outline in the first place.
Besides losing the false security of an outline, the fears of working without a safety net include forgetting to ask something, asking questions in the wrong sequence, and not having impeachment material readily at hand. But a colleague at the counsel table can follow along in the outline, the examiner can practice the cross to get the sequences right, and a list of impeaching material can be loaded into a computer so that it’s just a click away. Besides, the effect of over reliance on an outline is considerably worse than forgetting to ask a question or reversing a sequence. Good cross is an interrogation, not a presentation. Consider a mom. She comes on the scene when one child is screaming and the other is sulking, and her task is to find out what happened; so she asks questions. She watches her children as they give answers, she tests the explanations, she tests the commitment of each child to the answers given, and without any preparation or the benefit of discovery she ferrets out the truth. You can’t conduct interrogation from an outline.
Besides, you don’t have to ask everything in an examination outline. Indeed, forcing a witness into a dramatic admission may make everything else moot.
CONTENDING WITH THE WITNESS
Two of the most ingrained edicts of cross-examination are to never – ever – ask a question you don’t know the answer to, and to never – ever – ask anything but a leading question.
What happens if the examiner follows that advice? Nothing. That’s the problem. An uninspired presentation of disembodied facts elicited on cross from a witness defers joining the issue until closing argument. But argument of the client’s case through examination must persist from opening statement through closing argument and every witness in between. The jury expects cross-examination to be a contest, and the testimony of the witness to be tested and challenged If the examiner does not do so, the jury will tend to deem the witness credible – after all, what better proof of that is there than the failure of opposing counsel to challenge the witness on cross?
It is not enough to tie everything up in closing (except possibly in a criminal case), because the jury is “learning the tune” throughout the trial, forming impressions about what the truth is and who the credible witnesses are. If the examiner makes no concerted attempt to change these impressions during cross, how can those impressions be changed during closing argument?
There are some common situations where non-leading questions to which the answer is not known can yield big returns:
• Where the witness is obviously uncomfortable with his or her testimony, the truth may be lurking just beneath the surface, ready to burst forth like the cross-examination of Colonel Jessep in the final scenes of A Few Good Men. And there are other benefits. If the witness repeats the testimony in response to scornful questioning, in the same agonized (and obviously untruthful) manner, the jury will be focusing on the witness, not the words. And think of how much more memorable the event will be in closing argument when you remind the jury how the witness was so obviously dissembling.
• Where the answer is unexpected, and the implications will unravel the other side’s case, it would be a shame not to explore that chain of implications with the witness. What can the witness do, realize what he has done and recant? That would be memorable grist for closing argument too.
• When the witness admits that something shouldn’t have been done, there is only upside to elaborating on that theme with questioning on such topics as what else shouldn’t have been done, what are the implications of doing what shouldn’t have been done, and so forth.
• When there is an odious or thoroughly discredited witness on the stand, you want to ask him more questions so that when he embraces the opponent’s version of the account, that account will suffer by the association. In your closing argument that witness will become your standard-bearer for the opponent’s case.
• When the witness is tied down to a fact that is favorable, it is a waste to bury it in a leading question. Instead, ask an open-ended question and have the witness state the favorable fact. (Compare the impact of asking the patentee “Isn’t it true that you didn’t look at the patent application after the attorney prepared it?” “Yes.” with “So what did you do with the application when you received it?” “Nothing; I didn’t read it.”) And eliciting the testimony with an open-ended question may deliver unmatched opportunities for follow-up examination; for example, the witness in the foregoing example might have said: “Nothing, the President told me I didn’t need to read it.”
ELICITING “BAD” ANSWERS ON CROSS
The orthodoxy of cross-examination is to prevent answers which are adverse. Thus, litigators are taught to keep their questions short, to ask only leading questions, not to argue with the witness, and to prevent the witness from explaining, all to the end of keeping the witness on a short leash so that he or she can’t give a “bad” answer. But this presupposes that the jury is taking in the evidence as if it were an indiscriminate receptacle into which words are poured, which is precisely why this advice is dead wrong. A jury does not consider evidence as if it was receiving a transcript.
If what the witness is saying is contrary to the common experience of the jury, the evidence will be rejected and the witness’s testimony will be disregarded. Thus, a good example of eliciting “bad” answers to win cases is the time-honored tactic of giving a witness enough latitude to stroll happily over a cliff taking a proposition to an extreme. The examiner takes a witness’s improbable “bad” answer, and then asks the witness to adopt succeedingly more and more absurd elaborations of the bad answer until he has disgraced himself. Witnesses will follow this path because they want to remain consistent with their preceding answer, because they can’t reconcile a contrary answer with their preceding answer, because they are afraid of giving an answer which the examining attorney apparently wants, and because they are afraid the examiner will use a statement to the contrary to circle back and attack the original answer. By taking an extreme position with “bad” answers a witness so destroys his credibility that it doesn’t matter what answers he gave.
The same is true of eliciting misleading “bad” answers which are demonstrably untrue. If it can be shown that an answer is false, is misleading, or is improbable, the witness is worse off for having given the “bad” answer.
Cross is not just or primarily about what the witness says. It is about how the witness looks when he testifies. It is about the manner in which the examiner puts questions to the witness. It is about the witness’s refusal to accept perfectly reasonable propositions, or the witness’s refusal to give a straight answer. It is about the contrary evidence presented to the witness which the witness refuses to acknowledge. It is about answers which are contrary to common sense. Sometimes the best examinations consist almost entirely of open-ended questions that an examiner doesn’t know how the witness will answer, and doesn’t care; the questions themselves serve as the first phase of closing argument, and the “bad” answers unclothe a “bad” witness. Since the premise – avoiding “bad” answers at all costs – is wrong, the conventional advice to avoid “bad” answers at all costs is also wrong.
MAKING THE CALL
In every case and at every moment of the trial, the safety of the conventional rules has to be evaluated against the opportunities lost by following them. Making the call can be made easier by evaluating the opportunity in discovery. Depositions aren’t just for learning about the case; they are also for learning about the witness. Will the witness turn tail and run if challenged? Try it in deposition and find out. Can the witness be led to more and more absurd extremes? Lead in a deposition and see if the witness follows. (But don’t give away your killer cross just for the security of knowing how the witness is going to respond to it; that would be telling.) And videotape the testimony of significant witnesses, not only for more effective impeachment but also to remind you how he or she answers. In this manner when you come to one of those critical decision points as to whether to exploit an opportunity by breaking the conventional rules, you will be ready.
Beware the cost of convention; it comes at a high price.
Robert A. Spanner is a principal of Trial & Technology Law Group, Menlo Park, California. He can be reached at firstname.lastname@example.org. Other articles on trial practice can be found at www.techtriallaw.com.
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