The Fun of Cross Examination (Continued from page 18)
cross examination with rules in mind or with a theory to fulfill, she is presuming that cross examination may be done by rote and that all witnesses under similar circumstances behave in a similar man- ner. Experience dictates otherwise. Each cross examination in each case with each witness is different and must be ap- proached in a unique fashion. The only consistent thought, the only constant underlying questions must be: “What am I trying to communicate to the jury?” Two examples support this view. Gen-
erally, brevity is the goal during cross examination, but not always. I learned at deposition that a defense expert was never going to answer my questions di- rectly. He always deflected my questions or hypotheticals by arguing his position. Having analyzed his personality, I real- ized my challenge would be to convince the jury that this guy was not answering my questions, would never answer my questions, and was not being candid with the jury. My cross examination went on and on. And I let him go on and on. I did not ask the judge for help in getting short answers. I wanted the expert to repeatedly make his argument. I sat down after an hour and fifteen min-
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20
utes of his pounding every question into the same seat in the right field stands. But, as I had hoped, the jury noticed that he only had one answer – the defendant doctor did nothing wrong – and stopped believing him. Never ask a question to which you
do not know the answer is an old saw. Sometimes, however, one does not care what the answer is, all that matters is the question. The defendant, the driver, was certain he was 90 feet away when he first saw the client on a bike. I asked him how wide the courtroom was. I had measured it during a break at 50 feet. He answered 30 feet and my ques- tion was: “If I were to tell you it was 50 feet, we could both agree you were not lying, you were simply wrong.” Later at the bench, the judge commented to me about the question, noting that I could not possibly know how the witness was going to answer. I told the judge that if the defendant had said “50 feet,” I would have simply changed my question and asked, “If I were to tell you it is 65 feet, we could both agree you were not lying, you were simply wrong.” I was certain that the jurors did not know the room’s width and they would in discussion express that some thought it was 35, some 50 and some 65. The point was uncertainty, not accuracy.
Preparing for Cross Examination
What is the message of your case?
What is its theme? What are you trying to get the jury to understand so they join your side? Once those questions are established, then the purpose of each cross examination is established. While teaching on this subject, I am
fond of asking lawyers to raise a hand if in the past six months one of their cross examinations concluded with the defendant’s expert admitting that his or her opinion was wrong. For some odd reason everyone laughs at the question. So I then ask the same question but stretch the time line out for the past five years. Usually, more laughter. Cross examination is not for the
Trial Reporter
purpose of getting the witness to admit they are wrong, or if that is the purpose we all are rotten cross examiners. Once we disavow ourselves of the notion that our brilliant cross examination will destroy the defense, we may move on to the preparation of a successful cross examination. Preparation includes being familiar
with the Maryland Rules that cover cross examination, e.g., Maryland Rule 5-611. Because this is a short article and not a text book, no serious review is possible. The Rules are important because they set parameters and because they can be useful. For example, Rule 5-613(a) pro- vides that a witness need not be shown her prior written or oral statements at the beginning of cross examination. It is appropriate, although not always good practice, to simply quote a witness from her own deposition without placing the text before her. I am almost of a mind to state as a fact
that the attorney who prepares a cross examination without Googling that witness (or a direct without Googling his own) is guilty of legal malpractice. If a doctor works at a hospital, and is ren- dering an opinion, the website for that hospital will quite often contain wonder- ful, general medical information of value in a cross examination. For example, a defense expert from a university tried to claim that it was not the standard of care for all individuals over 50 to have a colonoscopy. I had to go no further than the website to find that the university makes such a recommendation to all its patients. Another expert from a university
attempted to testify that a physician confronted with symptoms of a tran- sient ischemic attack (TIA) could take them less seriously than symptoms of a stroke. Unfortunately, her own website repeatedly said such symptoms should be treated equally. And then there was the physician who failed to include on his resume an article he had written for a trade journal on medical malpractice in which he equated trial lawyers with common criminals. It made wonderful grist for a cross examination to read
Spring 2008
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