CLE OUTLINE
NATIONAL TRIAL LAWYERS ASSOCIATION
CROSS-EXAMINATION: ART AND SCIENCE
F. LEE BAILEY
I. INTRODUCTION: The use of cross-examination in courts utilizing the rules and procedures of Anglo-American Jurisprudence began hundreds of years ago. Dubbed both an Art and a Science, good cross-examination in fact partakes of both. In its scientific aspects, a well structured cross-examination, while remaining ever flexible and “light on the balls of the feet” nonetheless is grounded in predictable, repeatable phenomena. There are rules and principles to be learned, to be sure, and guidelines at every bend in the road, but the flair and sometimes the flourish brought to the task by the individual conducting the cross-examination is personal, and much tinted by the habits and proclivities of that individual. The demeanor of some cross-examiners is business-like and surgical, even stern, while others wear a smile throughout the process and lull the witness into the mistaken notion that he is among friends, even while his credibility is being quietly and subtly battered.
Years ago, when trials in the local courthouse were a principal form of community entertainment, and most juries lacked a high-school education, counsel’s command of what was often referred to as “The King’s English” was his principal weapon, both for cross-examining witnesses and for attempting to mesmerize the jury with pure persuasion at the end of the case. Final arguments could last for days, and involve the reading of long passages from the Bible, an encyclopedia, or any other compendium which was thought to buttress one’s grand style of eloquence.
These speakers were described as being of the “Chataqua Circuit” and had great stamina as they rolled out their arguments, often in stentorian tones. This speaking style influenced their use of the language during cross-examination. However, as one quickly realizes while reading actual witness cross-examinations such as those found in Francis L. Wellman’s all-time 1903 classic, “The Art of Cross-examination”, in modern times much of what was then acceptable conduct would now likely be brought up on a short leash by the trial judge. Wellman’s questioning could be rambling, argumentative and even abusive, but it was nonetheless brilliant.
A transitional figure in the world of jury trials was another New Yorker, Lloyd Paul Stryker, author of “The Art of Advocacy”, 1950. Stryker was convinced that American trial lawyers seldom achieved the high levels of competence in the courtroom that such a profound responsibility deserved, and strenuously argued that this country should emulate England, and create a divided Bar wherein only post law school trained “Barristers” would be permitted to try major cases. While his wish never much got off the ground, he did contribute some excellent examples of cross-examination set forth in the two chapters devoted to that subject. While Stryker’s manner when putting questions was somewhat modulated as against the “Chataqua” crowd, some of these would nonetheless draw spirited objections today.
In the early 1950's, Edward Bennett Williams arrived on the trial scene with a trial practice based in Washington. He got his initial experience defending public transit cases, and quickly won the respect of the Trial Bar, as well as prominent clients. He initiated the notion that thorough preparation of the facts was the sine qua non of good trial performance, and although he was a powerful, even superb speaker, his ability to dismantle adverse witnesses soon carried him to the top shelf of the profession. When asked how he was able to sometimes seem to “...pull a rabbit out of a hat..” during trial, he responded:
“You bring fifty hats and fifty rabbits, and you get very damned lucky!”
If that was really his formula, he was an uncommonly lucky lawyer.
While there are some law schools that offer specialized training in advocacy and grant an L.L.M. in that specialty, none have been able to offer the “apprentice” component which is the backbone of the training regimen at the Inns of Court in London, where young lawyers are weaned into Barristers, with much of their learning deriving from actual time in court, as second or third chair. That being the case, American trial lawyers are left pretty much to their own devices in polishing themselves and their talents to the point where they can bestride the well of the courtroom with easy confidence and well-honed skills. The protocols described below are one way to approach this formidable undertaking.
II. COMMAND OF THE LANGUAGE: One of the most important essentials making up the complex creature that is a top-shelf cross-examiner is the ability to manipulate the English language in a manner that will draw - and sometimes almost force - favorable testimony from unfriendly witnesses. This requires precision in the choice of words, and the manner of their delivery in question form. To improve one’s ability in this arena, the following points are relevant:
A. Training one’s voice to have a pleasant, but dominant, timbre and resonance. A whiny, grating, or monotone manner of speech puts listeners off, including those that sit in jury boxes.
B. Taking care to keep the volume of your voice up so that your words will be comfortably audible without the listener needing to cup an ear.
C. Enunciating your words clearly. When a jury cannot understand all of what you say because you are racing, slurring or mumbling your speech, it will be likely be sympathetic to a witness who expresses difficulty in comprehending your questions.
D. Except perhaps in very rural settings, avoid folksy dialogue which seems to “chat up” the witness or jury. Jurors expect highly regarded trial lawyers to be both courteous and professional, but not back-slappers.
E. At the other end of the spectrum, avoid also any tendency to be bombastic or pompous. Most adults will see quickly through a demeanor of this sort, and feel greatly underwhelmed by the speaker.
F. Eschew absolutely the Defensive Interjection. These range from annoying to offensive. They act as ugly stains on any speech. “Ah”, “Er” and similar verbal pauses are a signal that you are buying time trying to figure out what to say next. Much more sinful are “y’know”, a speech disease suffered by most professional athletes and many others, and the nadir of the genre, “like”; some speakers cannot resist using this nonsensical word several times in a sentence. Unless used to indicate an affection or preference, or a similarity, “like” is simply grating. Learn - train yourself - to ask questions and articulate assertions without any of these warts popping up.
G. While it is good to demonstrate a wide-ranging vocabulary, the deliberate use of an abundance of “fifty-cent” words is pedantic. Choose words at the upper end of the quality scale, and if a word that you use does seem off-beat or upscale, find a way to translate it. Using words a listener doesn’t fully understand can be an embarrassment to the listener. An exception occurs when an expert is being cross-examined. You need to know a lot about his or her special vocabulary when formulating questions.
H. As one means of improving your level of speech quality, listen carefully to the presentations of television network news anchors, and watch their demeanor and facial expressions. Albeit they are often reading from tele-prompters, their use of the language is normally at a high level.
III. EXPANDING THE MEMORY: Just as important as the ability to communicate effectively is the use of memory. Cross-examiners cannot come to bat on crutches, and still be effective. The weapons to be used in cross-examining a witness should be in one’s head and at the ready, not on notes, outlines, or even cue cards. The anatomy and mechanics of human memory has been a hot item on the science front for the past year or two, and some of the instructive literature - both written and on video - is very informative. Trial lawyers need to keep abreast of this subject, because the best trial lawyers inventory the material they need between their ears, and keep their eyes at all times on the witness. Witnesses generally disclose distress caused by cross-examination questions in their eyes, substantially before their voices begin to rattle.
A. There are several different kinds of memory, and they need to be understood in order that they be effectively managed. They are:
1. Short term or “working” memory. This is where moment to moment perceptions from any of the five senses first enter the brain. If they are then pushed through the “gate” into long-term memory, they can be archived and retrieved, unless they are allowed to fade. Working memory does not have much capacity. Most adults of medium intelligence can retain only about seven numerical digits, unless they are specially trained to hold more - much more.
2. Long term memory, the archive. Until recently, neuro-scientists thought that long term memory had a finite capacity. That is no longer the case. It has yet to be demonstrated that someone has “run out of space”. Pack away all the trivia you like. Long term memory comes in three flavors:
(a) Rote memory, also called “brute memory”. This stuff - the alphabet, the multiplication tables, the periodic tables in chemistry - has to be force fed, generally by reviewing it over and over again until it sticks. A quarterback may have written reminders on the inside of his non-throwing wrist, but his team mates have to keep the plays in their heads. Rote memory comes into play in cross-examination when counsel literally memorizes lines from prior testimony, or from a document, enabling him or her to hurl them at a witness while keeping their eyes locked.
(b) Semantic memory. This the habitual stuff that accumulates over the years and takes root. You recognize your home, office, school, or significant other without having to pull images forward from long-term memory. Both counsel and the witness will rely on semantic memory during a cross-examination, but when a witness’ declarations stretch too far from the ordinary and usual, he may need a workout as to his credibility.
© Episodic memory. This is the foundation from which litigation often grows, a happening of some kind, an event or “episode”. Disagreements as to which witness saw, heard, or smelled what, and when, become clashes which are ultimately handed to jurors to sort out. They are much of the raison d’être of cross-examination: testing and contrasting the differences in witness’ tales, then urging the credibility of those which most help your case. Retrieving one’s recollection of past episodes is the challenge here, and the capability of human’s to perform this feat varies in accuracy across the spectrum. This process is loaded with fallibilities, from the witness’ original perception, through his storage and later retrieval of that perception, to the word-pictures he or she tries to create to transfer that memory to the jurors. At every stage in this process, errors range from minor to catastrophic. How many innocent prisoners have been found on death row in America alone, victims of the worst kind of evidence, eyewitness identification.
3. Exercising one’s memory. Memories do not expand and increase speed by osmosis, anymore than Tom Brady and Aaron Rogers suddenly pop upon the scene each September, limber, fit, and ready to trek on to the Super Bowl. They work very hard on each facet of their talents and skills to stay at the vanguard of the profession. Top-flight trial lawyers need to emulate this sort of discipline. There are many ways to expand the number of things one can carry in his or her head at any given time, but that takes regular exercise. Any game of intellect, whether it be bridge, chess, or scrabble helps. So do cross-word puzzles, anagrams, and other challenges to what Agatha Christie’s Belgian detective, HerculePoirotwould call “...the little grey cells...”. Even video games, where speed is an usually an important component of success, are good training, for speed is a vital arrow in a good cross-examiner’s quiver. Forcing names and telephone numbers into long-term memory, and using tricks of association to enable their retrieval, is de rigeur in memory training. Sitting through the instructive sessions of the many good video lecture programs available is time well spent. The ageless quiz show Jeopardy is good drill, requiring recall memory retrieval, as opposed to the easier form: recognition (e.g., multiple choice) One serious caution, however: as Smartphones become more prolific and more capable, humans tend to let their memories shrink and store everything on the phone.. For cross-examiners, this is akin to the death rattle. Don’t go that way.
IV. INVESTIGATION & PREPARATION: This topic, including a segment on polygraph testing, is thoroughly covered in our book, Excellence In Cross-Examination. It is paired with a careful review, from a “street” perspective, of the Federal Rules of Evidence. This is not a subject from which one can clip a small snippet and throw it into the mix. I intend to say a few words about this most essential element of cross-examination, but will not have the time to delve deeply.
V. PREPARING TO CONFRONT THE WITNESS:
A. The tools. As more and more trial lawyers are learning, the cyber world of computer searches can make the life of the advocate much easier, and the presentation of evidence - including cross-examination - more speedy and seamless. Although this digital world changes almost faster than one can track it, it is now both feasible and convenient to carry with you - in a package (an iPad, Surface, or similar tablet) weighing less than two pounds - all of the cases, including virtually all of the evidence (excluding real objects), which are calendared for the next six months. Rolling huge cartons of paper, or having a junior do it, to and from the courtroom for each day of trial, is no longer necessary. Among a number of software programs available to trial lawyers, two seem well-worth a tryout: TrialPad and TranscriptPad from “Lit” software, offer well-designed, very useful programs for the storage of one’s evidence, well organized and easy to retrieve and display. With a prodigious amount of memory, a tablet with TrialPad can hold an enormous amount of material, including graphics, videos, and a slew of documents. TranscriptPad, its sister program, accepts all kinds of transcripts - depositions, court testimony, any Q. and A. compiled by a court reporter, so long as it is in “.txt” format. The transcript can be flagged, highlighted, and linked to other documents or exhibits, in a manner only limited by counsel’s imagination. I espouse these tools because quite apart from saving wear and tear on aging backs, they enable cross-examination to proceed with a high rate of speed. A reasonable and relentless degree of alacrity is an essential element of good cross-examination.
B. The arena. In order to make the most of these tools, the configuration of the courtroom is important. Most courts in modern times have basic audio-visual equipment available, either on hand or with some notice of need. Projectors and movie screens are age-old devices, but properly placed and utilized do a satisfactory job. More convenient by far are television screens. The setup in the courtroom during the O.J. Simpson trial was close to ideal. A large segment of the wall behind and to the right of the witness box displayed images that the lawyers, jurors and public could see, and read from a distance. The judge and the witness, who were facing away from that wall, had individual repeater screens in front of them. By and large the arrangement worked smoothly. When a witness was questioned about an image or video being displayed, everyone was looking at the same thing, a part of the screen usually highlighted with a laser pointer. Any A/V arrangement that obviates the need to show counsel, the witness, the court, and then the jurors by means of a pass-around, is acceptable. But do display your wares so all can see and understand at once. Such a system is also helpful in keeping the jury’s attention. Needless to say, before engaging in this sort of presentation, some serious preparation and evidence scheduling, including pre-witness rulings on admissibility. is generally mandatory.
VI. THE BATTLE: Armed with a formidable vocabulary, a clear and commanding resonant (or dulcet and becoming) voice, and a handy segment of long term memory chock full of case facts, it is time to dismantle the testimony of those witnesses of the opponent who - if believed in substance - can push your case underwater. These are the enemy, and the fewer that need attacking, the better. There are many principles of cross-examination, and a few examples of guidance which might be called rules, but it remains a slippery business. Training, books and lectures are all helpful, but no substitute for courtroom observation, graduating into participation. Years back, when some of my elder colleagues of the Chataqua breed were handling all the front page cases, most of them hewed to the view that cross-examination could not really be taught except by “carrying the bag for the lead counsel”. They maintained that you best learned to cross-examine the same way you most quickly learned to swim: by being thrown out of a boat. Most senior advocates have attenuated such tenets, and concede that out-of-court instruction can provide a healthy foundation. Here are some basic pieces of advice that most top shelf trial lawyers will support: