From time to time, some lawyer undertakes an effort to educate other lawyers on how to conduct cross-examinations. Francis Wellman did so over 100 years ago in his excellent book, The Art of Cross-Examination. In my generation, Irving Younger’s Ten Commandments of Cross-Examination was treated by law professors as if it was handed down by the Almighty. Now, Ronald H. Clark, George R. Dekle, Sr. and William S. Bailey add to these excellent works with the Cross-Examination Handbook: Persuasion Strategies and Techniques.
The book begins by quoting the words of Wellman, who aptly explained the challenge of cross-examination with these words:
Cross-examination … requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self control; power to read men’s minds intuitively, to judge their motives; ability to act with force and precision; a masterful knowledge of the subject matter itself; an extreme caution and, above all, the instinct to discover the weak points in the witness under examination.
The Cross-Examination Handbook endorses the belief that cross-examination is a learned skill, and proceeds to teach us how to prepare to meet Wellman’s challenge. The book provides practical strategies and skills on virtually every page. It shares and examines excerpts of cross-examination from real trials to give us a flavor of the real-world application of its teachings. It also reminds us of applicable law, procedural rules and ethical principles that must guide our efforts.
Experienced trial lawyers who read this book will quickly realize that the authors have real experience with the subject. One example of this fact is a section of the book dealing with inconsistent statements. Lots of emphasis is placed on this subject in trial advocacy classes and trial colleges, and it cannot be denied that impeachment with a prior inconsistent statement can be devastating, both to the witness and the party that offered the witness’s testimony. All too often, however, we see lawyers who attempt to impeach on prior statements that are barely inconsistent with the witness’ current testimony. Clark and his colleagues correctly describe the result: an “effort to impeach … [that] is tedious, boring, and irritatingly nitpicking.”
Does that mean that a witness has a get-out-of-jail-free card for minor inconsistent statements? Not necessarily. The authors explain when to explore such statements on cross-examination:
[T]here are two situations where impeachment by minor prior inconsistencies can succeed. First, the cumulative effect of a myriad of prior inconsistencies can reveal that the witness is not credible. Second, evasive professional witnesses trying to support a position can sometimes be shaken when confronted with minor inconsistencies. The goal of this approach is greater witness compliance. If the witness shakes off the inconsistencies as trivial, this technique is best dropped.
The book includes a large number of helpful practice tips, included both in the text and then highlighted in “black-box” format. For example, here is an example of the “black box” summary of techniques to expose the faking forgetter or ignorant witness:
1. Establish that the person is neither ignorant nor forgetful.
2. Ask about significant and unforgettable matters.
3. Elicit as many “I don’t know” and “I don’t remember” answers as possible.
4. Show that the witness remembers things that are less significant than that which the witness claims not to know.
5. Confront the witness with a prior statement proving that which the witness claims either to have forgotten or not to know.
6. Lock the witness into not to recalling a favorable fact that the examiner can prove through another witness.
The book thoughtfully explains each of these points, and gives some examples on how to make a closing argument after the point is established on cross-examination.
The book also includes multiple checklists that are extremely helpful to the practitioner. Here is a sample checklist for a lawyer seeking to exclude expert testimony:
Counsel can consider making a motion in limine to exclude expert testimony on the following grounds with references to the Federal Rules of Evidence:
- The witness lacks sufficient qualifications to be an expert – Rule 702.
- The subject is not beyond the common understanding of the fact-finder and therefore will not assist the fact-finder – Rule 702.
- The field is not sufficiently reliable – Rule 702; Frye; Daubert.
- The expert’s testimony will impermissibly render an opinion on the law or on a witness’s credibility, or dictate to the jury what decision to reach – Rule 704.
- The testimony’s probative value is substantially outweighed by unfair prejudice – Rule 403.
- The testimony would be a waste of time or presentation of cumulative evidence – Rule 403.
- The testimony is irrelevant to any issue at trial – Rule 401.
- The expert lacks a basis in fact or data on which to render an opinion – Rule 703.
- The opinion is too speculative (“could have,” failing to be expressed in certain terms) – Rules 401, 403.
Here is a short portion of another checklist titled “Content and Concession-Seeking Cross-Examination:
4. Brainstorm for impeachment material using this list of impeachment areas for all witnesses:
- Lack of personal knowledge;
- Mental and sensatory deficiencies;
- Bias and interest
- Improbability;
- Prior inconsistent statements;
- Contradiction;
- Prior convictions;
- Prior misconduct probative of untruthfulness; and
- Character witness.
The book is filled with these useful checklists, each of which can be easily modified to fit the law of a given state. One suggestion I have for improvement of the book is a compilation of checklists in an appendix. The book attempts this effort by consolidating some checklists at various places in the book, but the suggested appendix would make particular checklists more accessible.
I wholeheartedly endorse this book for law students and young trial lawyers hoping to develop their cross-examination skills, as well as for experienced lawyers seeking to improve theirs. As John Henry Wigmore said, cross-examination is the “greatest legal engine ever invented for the discovery of the truth.” We courtroom mechanics will benefit by adding this tool to our toolbox.
The Cross-Examination Handbook (2011) is published by Aspen Publishers, a division of Wolters Kluwer. The book is available for purchase here at the bargain price of $39.50.