I have practiced nearly 30 years. I have not found it boring and have loved doing it. I have been blessed with a variety of cases and have not been afraid to push my boundaries a little from time-to-time. I have worked as a federal law clerk, state prosecutor, federal prosecutor, insurance defense attorney, criminal defense attorney and plaintiff’s attorney. When necessary I have either consulted with or co-counseled with someone if I did not feel comfortable handling a specific area of substantive law. In larger firms where people specialize and handle only one type of case, it may become boring. If you specialize you will undoubtedly make more money. The downside is that you may get burnt out from the monotony of doing the same type of case over and over. However, even if you specialize it helps to get outside your area of the law even if it is just reading advance sheets. This expands your analogical skills and you may discover a different way of approaching a problem by way of analogy. Not only is variety the spice of life, it may also increase your legal creativity and make you a better trial attorney.
Monthly Archives: February 2012
Cross-Examination of Experts: Where to Start.
Where do you start with your preparation to cross-examine an expert? The following is a list of areas to review:
1. The Expert’s Curriculum Vita: You should thoroughly review the expert’s c.v. Expert’s will exaggerate and even make up credentials. In a criminal case I was defending the State’s expert, an environmental specialist, claimed he had a B.S. in engineering and was a P.E. which is typically short for being a certified professional engineer. He had signed all of his reports as a P.E. which at the deposition he claimed was short for “plant engineer” apparently suspecting he was at risk. Surprisingly, he claimed that he had never intended that anyone believe he was a certified professional engineer as I move through over twenty separate reports where he used this designation. He admitted that to make such a representation would be a bold-face lie. I then concluded his deposition by looping back to the first exhibit I had him identify and authenticate as being true and accurate, his c.v. There buried about half-way through the c.v. in his own words was the assertion that he was a “certified professional engineer”. He end up admitting to a number of other fabrications as well, including his educational background and other professional certifications. These were all done so he could raise his profile and make more money. All criminal charges against my clients were dismissed shortly after this deposition.
2. Prior Testimony: Expert’s who testify have often times covered similar ground in other cases. Depositions are an excellent source of inconsistent positions and damaging concessions. You can also find areas of bias explored in other depositions. I have subpoenaed expert’s records which they claimed that they no longer retain and ended up using the expert’s prior testimony to establish that they could in fact obtain such information. Trial lawyers often maintain data banks for frequently used experts. Westlaw and Trial Smith also have data banks you can search for a fee. Don’t ignore these sources.
3. Prior Writings of the Expert: Such articles contain principles upon which you can anchor your cross exam because they are the expert’s own words. These are admissible under Rules of Evidence 613 (prior inconsistent statements and 803(18) (learned treatises).
4. The Expert’s Report: A careful analysis can uncover implicit assumptions and the basis of the expert’s opinions. Often times the best way to challenge an expert is to show the foundation of his opinion is resting on sand, not bedrock. The truism of computer science is equally applicable to expert witnesses, “Garbage in, garbage out”. Just remember to anchor the items which are “garbage” as important early in your examination before looping back and pulling the rug out from the expert.
5. Learned Treatises: You should consult the central authorities of your expert’s field as well as journal articles in his field. You should in particular focus on those items you know he will have to admit are authoritative such as journals of organizations he is a member or leading educational textbooks in the expert’s field. Don’t forget the requirements of Rule of Evidence 803(18) which require that someone establish that the writing is authoritative and the text of the treatise you want to use must be read into evidence while the expert is on the stand.
6. The Internet: The Internet is the great equalizer. You can find journal articles, licensing databases, training videos, literature, the expert’s website, test protocol, websites listing experts for hirer and more. I have used training videos to demonstrate law enforcement experts have failed to follow testing protocol for determining whether blood was present and have found You Tube videos regarding protocol for surgical procedures for use in questioning doctors. Google your expert’s name; you can find all sorts of interesting background information and leads. You can check Google Scholar for journal articles and case law from across the land to see if your expert has testified or written any articles he may not have listed.
7. Private Investigators: They can help you verify credentials and degrees as well as identify other lawsuits where the expert has testified or been sued. You might even turn up an impeachable offense.
8. Consulting Experts: They can assist you in spotting errors and mistakes in an expert’s analysis. They are also an excellent source for finding learned treatises and journal articles.
9. Other Attorneys: This probably is not the expert’s first rodeo. Check with other trial lawyers in your area who may have come across the same expert. Call lawyers identified in your search of case law or the list of past cases found in the mandatory disclosures required in federal court cases. They can provide useful tips or identify tendencies of the expert.
10. Know Your Case: You will in all likelihood have a better working knowledge of your case than the expert. Cross-reference your evidence, exhibits, documents and deposition testimony and be ready to pounce on any mistakes the expert makes in understanding the case. I have beat adverse experts more often than not by knowing the facts better than the them. This allows you show the jury they are not a trustworthy guide.
11. iPhone Apps: Yes, there is an app for that too. I have used accident reconstruction apps to test and see what a change in the input data would mean to the expert’s ultimate conclusions. I have also used well known apps such as Wolfram Alpha and Power One FE Calculator for similar purposes.
Good luck hunting. Remember nothing beats preparation.
Trial Work: Variety is the Spice of Life.
Fireside Reading for the Trial Lawyer
The next best thing to being in court is reading about it. The following is a list of books I believe will help you become a better trial attorney:
1.Polarizing the Case: Exposing and Defeating the Malingering Myth by Rick Friedman ;- this book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position ;that your client is “a liar, a cheat and a fraud” or completely abandon this position. The book provides a comprehensive approach to simplify your case and deal with a single coherent theme… Is my client telling truth about her injuries?
2. Rick Friedman on Becoming a Trial Lawyer by Rick Friedman – a great book for young lawyers about what it takes to become a real “trial attorney”.
3. David Ball on Damages by David Ball– an excellent book on strategies and methods to help jurors better appreciate the scope of damages and why it is necessary to compensate those who have been damage or injured.
4. The Art of Cross-Examination by Francis Wellman ;- classic legal literature which still rings true today on various techniques for cross-examination.
5. Closing Argument: The Last Battle ;- This book is a well-organized ;collection of miscellaneous arguments and analogies which can be ;used to explain and illustrate various legal issues and address common defense attorney arguments and tactics which are used ;to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case. The book has ;a number of very effective arguments which address topics such as calculating money damages for pain and suffering, adverse witnesses, the burden of proof/ reasonable man standard, subtle appeals to prejudice, and other often ;encountered issues in civil cases. A review of the table of contents will give you a good idea of this book’s value.
6. Win Your Case: How to Present, Persuade, and Prevail by Gerry Spence – this book will help you fine your own voice and become a more effective advocate for you clients.
7. Exposing Deceptive Defense Doctors by Dorothy Clay Sims ;- this book provides in-depth check lists and strategies for dealing with defense medical examinations of all sorts.
8. Theater Tips and Strategies for Jury Trials by David Ball ;- this book analyzes all aspects of your presentation to juries to become a more effective communicator in the courtroom.
9. The Best Defense by Alan M. Dershowitz– a practical eye-opening guide to what criminal defense attorneys face in terms of bias and corruption in our criminal justice system based upon cases where Professor Dershowitz of Harvard has acted as defense counsel.
10. ;Letters to a Young Lawyer by Alan M. Dershowitz – advice to young lawyers on ethics, professionalism and pitfalls to avoid in the practice of law.
11. I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know By Jim M. Perdue – a wonderful compendium of stories that bring to life how legal protections arose such as trial by citizen jurors and the separation and exclusion of witnesses from the courtroom.
12. In the Interest of Justice: Great Opening & Closing Statements by Joel Seidemann ;- this is ;a collection of notable of opening and closing statements in famous cases.
13. THE ELEMENTS OF STYLE by William Strunk – a short guide on how write clearly and concisely.
14. The Devil’s Advocates by Michael S. Lief – ;this ;is ;a collection of notable of opening and closing statements in famous criminal cases.
15. A Rulebook for Arguments (Fourth Edition) by Anthony Weston – it is a concise guide on argument structure and use.
16. Lawyers’ Poker: 52 Lessons that Lawyers Can Learn from Card Players by Steven Lubet – the book uses poker as an analogical means illustrating various points of law.
17. Ladies and Gentlemen Of The Jury by Michael S. Lief ;- this ;book contains transcripts notable ; opening and closing statements in famous cases.
18.And the Walls Came Tumbling Down by Michael S Lief ;- ; ;this ;book contains transcripts notable ;closing statements ; made in famous civil rights cases.
19. The Trial Lawyers: The Nation’s Top Litigators Tell How They Win by Emily Couric ;- a behind the scenes disclosure of methods used by experts in litigation to prepare and try cases.
20. The Trial Lawyer: What It Takes to Win by David Berg – this book provides a comprehensive overview of what it takes to win at trial.
21.McElhaney’s Trial Notebook by James W. McElhaney ;- A collection of ;essays on trial advocacy by Professor McElhaney ;covers a number of ;areas involved in modern-day litigation. ;
22. ; To Kill a Mockingbird by Harper Lee – The classic novel of a courageous lawyer taking on the unpopular cause of a black man charged with raping a white woman. ; This book displays the best and worse of our justice system and has inspired a number of people to become lawyers.
There are many more books out there worthy of consideration. This is simply a short list of books I would recommend you read.
Why the Adversary System? Is it the best?
Why the adversary system? Should we be filled pride or skepticism about its use? The adversary system is under appreciated and its value is misunderstood by the public. As a result, it is often held in low regard. When each side is equally represented and heard, it more often than not results in accurate assessments and outcomes. Then why the skepticism? Misinformation and propaganda by the wealthy and big business suggest that there are all kinds of crazy verdicts against the rich. No one hears when some poor person or working class citizen loses. There voice is not heard. There are very few places in this world where a handy man and a multi-millionaire can square off and be heard by everyday people to resolve their dispute. Absent the contingent fee contract such justice would be impossible for citizens. Corporations, doctors and insurance companies are financially able to hire big law firms and pay $500 plus per hour for an army of attorneys from a politically connected firm to carry their cause. There is no true equalizer in the criminal realm beyond our constitutional rights which many view as mere technicalities. Honestly who could compete against a government which has unlimited funds in a criminal trial. The government has well-trained investigators, experts and attorneys to pursue their position. If they want you badly enough it would be very hard to prevail without the adversary system and its many protections that try to balance the scales of justice. At the end of the day an innocent man’s best hope is to be physically free, but financially drained with a cloud hanging over his personal reputation.
The Greatest Rule of Cross Examination – Always ask a leading question!
Alright you are getting ready to do your first cross-examination and you wonder what is the most important rule to being successful? It is simply this “Always ask leading questions that provide information supportive of you case.” You ask, “How can that be?” That’s too simple!
The rule is easy to announce, but it is not easy to abide by in Court. It takes practice and discipline. In 1982 right out of law school, I was fortunate enough to work as a law clerk for a federal judge in Hammond, Indiana in the infamous “Region” of northern Indiana and had the opportunity to watch one of the best cross-examinations I have ever seen. I was looking in on a criminal trial being defended by renowned and flamboyant Chicago defense attorney Frank W. Oliver (1920 to 2006). He came to court with a cape across his shoulders and amulet hanging from his neck. I gazed on as Attorney Oliver regally stood and asked a FBI Special Agent leading question after leading question for well over an hour. Frank logically linked in sequence one leading question after another to drive home his point. His cross-examination was mesmerizing and devastating in driving home his defense theme.
At a break, I approached Attorney Oliver and asked if I could pick his brain about cross-examination. He generously offered to speak with me at the end of the day over dinner. He told me that I needed to get a copy of Plato’s “The Republic” and read it. He promised that the secret of a successful cross exam Could be found in the pages of Plato’s book. Over the next couple of days, I intently read the “The Republic” from cover to cover. At the close of his trial, Frank promised we would discuss the book and what I had learned. Several days later at the close of his trial while the jury deliberated, Frank asked me what I had discovered? I told him that, “Cross-examination was simply argument disguised as a series of rhetorical questions.” He told that I had learned my lesson well and that was all there was to it. Mr. Oliver explained “I structure my questions in such a fashion that I don’t care what the answer is because I am providing the jury with my arguments and the theme of my defense through the series of rhetorical questions I ask of the witness.” Frank’s lesson has stay with me over the years. I have used what I learned to great effect in cross-examinations I have conducted since then.
So remember the golden rule of cross-examination… Always ask leading questions! If you still don’t see the point, follow Mr. Oliver’s advice to me and read Plato’s “The Republic” and you will see light as I did. Thanks Frank for your advice. It has served me well.
Above is a copy of Frank Oliver’s Stamp he placed on many of his beloved and treasured books that he collected.
Solo Practice – How Can I Compete?
You are in a small firm or maybe even a solo practitioner and you are trying to keep up with a large law firm and their army of attorneys. What do you do? Well you could seek out a co-counsel arrangement with a more experienced attorney. You should not just turn over the case to co-counsel and forget about it. Instead, actively participate and learn the ropes from an expert. You can also join a professional association and seek mentors from its ranks. If you are doing plaintiff’s work, I would strongly recommend that you join the Trial Lawyers Association and become a Sustaining Member or join the ABA litigation section. If your state is like Indiana, there is a confidential Trial Lawyers list serve website where attorneys share advise, strategy, information, research, briefs and forms. It is a great equalizer because attorneys will gladly and freely share information and advice with new attorneys or old (unlike the defense side). It’s like belonging to a large law firm because you can get help from hundreds of attorneys for free. These trial lawyer associations also maintain legal brief data bank and deposition data bank for experts who regularly testify for the defense. So don’t go it alone, next time call a colleague!
The Barrister's Toolbox 