Category Archives: Uncategorized

Use Excel to Count the Number of Emails in Each Email Chain

This is vexing problem which can take weeks and cost clients thousands of dollars in attorney time. Please read this practical solution…

Excel Esquire

Courts and litigants have long struggled with the question of how to describe email chains on a privilege log.  Should you log only the most recent email, or log every email in the chain–or something in between?  New York has recently adopted a potentially burdensome rule on this topic–one that cries out for an Excel solution.

Effective September 2, 2014, Commercial Division Rule 11-b imposes new obligations on litigants in New York Supreme who create document-by-document privilege logs, as opposed to the now-preferred “categorical privilege logs.” See here to read the rule.  Among other things, entries for email chains should now indicate “the number of e-mails within the dialogue.”  Rule 11-b (b)(3)(iii).  That means you can log only the most recent email in a given chain, but you need to also disclose how many emails are in the chain.

How, exactly, does one figure out the number of emails in every email…

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Direct Examination and Airing Your Dirty Laundry

LaundryThere is no tactic which will better serve you and your client in establishing credibility with the jury then to bring out negative points during direct examination and confronting them head on with believable explanations. If you wait until redirect, then it may be too late to salvage your witness. I always make a list of problems as the case progresses from investigation through discovery and on the trial. Come up with a strategy of either excluding the evidence or find a way to deal with it honestly and persuasively before the jury.

During direct examination, you can ask questions of your client or witness the jury is likely thinking. The witness is then provided an opportunity to take some of the sting out of the evidence by having a friendly questioner take them through the problem. The opposing attorney on cross-examination will be much more reluctant to extensively cover that area and come across as overbearing, looking as if he is desperate as he has nothing else to ask or add to outside of your examination.

The client or witness should be cautioned to stay calm throughout their cross-examination on any such topics. Once the matter has already been brought out to in direct examination, the jury will be looking much more at the witness’s reaction on cross.  If they do not react and you do not react, the jury will likely conclude that the matter is not critical to their decision. Most jurors have never been in a courtroom before and will not consider the points important unless you act like they are.

Witness Preparation… You only get one chance to make a good first impression.

 Yes, appearance does count!  I’m always amazed when witnesses or parties appear in court and are dressed like they’re going to be working in their yard or are going to a dive bar. First impressions are lasting impressions. Before your client or witness says a word the jury or judge will be sizing them up as they approach the stand. The case could be lost before the witness has ever uttered a single answer.
 ​Always have your client or witnesses (when possible) meet you for preparation as to how they plan to dress in court. Do they have a crazy hairstyle? Are they covered with tattoos? Are they unshaven or unkempt? You need to know this before they make it into the court room whenever possible. Sometimes this is either impossible or somehow unavoidable. If such a situation arises, you need to be able to explain it to the jury. If their claim is they are poor and cannot afford to buy new clothing, there’s nothing to prevent your client from going to a local Goodwill or Salvation Army center and obtaining suitable attire. I remember when I was a prosecutor and first met with an inmate who was supposed to testify for me in a major trial. Almost every inch of his body was covered with tattoos. We obtained a collared shirt, sweater, nice slacks and dress shoes for him to appear in court. We also asked him to get a haircut at the penal facility where he was incarcerated. After he put on his clothing and with his new haircut, not only did he look one hundred percent better, he also felt much more relaxed and confident in his own ability to testify.  In fact, he was proud of how he looked. He remarked, “I look like I should be in college.” It also helped him to testify in a more dignified and calm manner. Truly, clothes make the man or woman.

 ​All that being said, I try to make sure that if a client or witness will not be dressed in a suit or an equivalent, then I try to have them choose clothing that respects the proceeding, the court and the jury, while still allowing the witness or client to feel comfortable in their own skin.

 ​Overly flashy or expensive outfits should be avoided. You want to choose apparel that will be found acceptable by a broad range of individuals, because that is who the jury is going to be made up of… a cross-section of the community.  

 I once had a client who had an elaborate braided hair style which undoubtedly cost hundreds of dollars, yet we were claiming that as a result of her injury she was placed in difficult financial straits. Obviously, there would be those on the jury who would view such an expensive hair style as contradictory. As a result, we had her obtain an appropriate wig to avoid any misimpressions. On another occasion, I had a client who always wore tinted glasses. As the saying goes, eyes are the windows to the soul. I knew that no jury was going to trust someone whose eyes they could not see. Obviously, if my client had been blind, there would have been no problem. However, absent such an extraordinary circumstance I would never allow a client to appear before a jury in sunglasses. When the client initially fought me on this, I asked her what was more important to her: Obtaining a fair and full verdict to compensate her for her injuries or looking dishonest? She made the right choice and ultimately obtained a sizable verdict.

 ​Remember, first impressions are lasting impressions and people (including juries) do judge a book by its cover.

Closing Argument – Shelving Some Good Ideas

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What are some other resources I should consult?  Here is a list of books dealing directly with closing arguments that should offer both guidance and inspiration:

  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. 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.
  3. Closing Argument: The Last Battle by Mike Papantonio: 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.
  4. Win Your Case: How to Present, Persuade, and Prevail by Gerry Spence: This book will help you find your own voice and become a more effective advocate for you clients.
  5. 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.
  6. 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.
  7. 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.
  8. The Devil’s Advocates by Michael S. Lief: This is a collection of notable of opening and closing statements in famous criminal cases.
  9. A Rulebook for Arguments (Fourth Edition) by Anthony Weston: A concise guide on argument structure and use.
  10. Ladies and Gentlemen Of The Jury by Michael S. Lief: This book contains transcripts of notable opening and closing statements in famous cases.
  11. And the Walls Came Tumbling Down by Michael S Lief: This book contains transcripts notable closing statements made in famous civil rights cases.
  12. 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.
  13. McElhaney’s Trial Notebook by James W. McElhaney: A collection of essays on trial advocacy by Professor McElhaney which covers a number of areas involved in modern-day litigation.
  14. Moe Levine on Advocacy by Moe Levine: A treasure trove of effective arguments for the plaintiff’s attorney.
  15. The Art of Summation edited by Melvin Block: A collection of fine arguments from the New York Bar published during the 1960s. This book stands the test of time.
  16. The Lost Art: An Advocate’s Guide to Effective Closing Argumen by Judge Joseph F. Anderson, Jr.: This book is a treasure trove of great ideas, quotations, analogies and the law governing closing argument.  It is probably my favorite of those listed above.

There are many more books out there worthy of consideration. This is simply a short list of books I would recommend you read.

Closing with Style

20111004-075359.jpgStyle and Delivery

As mentioned in my last post, there are a number of great sources worth consulting for purposes of delivering a closing argument.  On that is particularly appropriate is the a speech book called, Speak Like Churchill Stand Like Lincoln by James Humes.  Here are a few short comments on this topic:

  1. Tone – You should vary your tone and positioning during your argument and use that as a signal to the jury as you move from point to point. Your delivery should have feeling and sincerity

2. Time Limits – Try and learn what limits the Court is likely to place upon you before the trial begins so that you can adjust your closing argument accordingly. I typically try to leave at least a third of my time for rebuttal argument when I am the plaintiff. Ask the Court to signal you when you are down to your last five minutes. Have your closing remarks down pat so you can end on a high note.

  1. The Whole Case – You want to weave together the whole case for the jury and show how it fits into the narrative you presented in opening statement and is addressed by law as given by the Court.  Make sure that you give specially tailored instructions to discuss the central issues in your case. Examples could include sudden emergency, pre-existing conditions, intervening causes, superseding causes, mistreatment by a doctor, evidence offered for a limited purpose, etc. Both the law and the facts will impact your case. Also, make sure that you have a good issue instruction since this will likely be the first exposure that the jurors will have to your case.

Don’t be afraid to introduce in your jury voir dire certain concepts or even analogies if you are sure you are going to use them as part of your theme. I was defending a murder case and used the “cat & mouse in the box” analogy in explaining reasonable doubt and in my closing I was able to refer to the various problems with the case as the “holes in the box” carrying on my theme throughout the case.

      4.  Use of Visuals – Paint a vivid picture with choice of words you use.   For example, “They beat my client like a dog, blood splattering everywhere while he begged for his life.”

       5.  Quotes – There is a website called “Quotationary Online”, here is the link:

https://quotationary.wordpress.com/about/

Thanks to the internet you can find quote about almost anything in a matter of seconds.  Here are a few I like in no particular order:

    • “The truth exists, but lies are invested.”
    • “Bad excuses are worse than none at all and all that you have heard are bad excuses.”
    • “Many a lie is woven in the fabric of truth.”
    • “There are  three kinds of lies.  Lies, damn lies and statistics.”
    • “Figures don’t lie, but liars figure.”
    • “If you tell the truth, you never have to remember.”
    • ” No one has asked for your sympathy and no one does now, and when you have reached a verdict which is sanctioned by your conscience and ratified by your reason, no one can ever be heard to complain.”
    • “I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live by the light that I have. I must stand with anybody that stands right, and stand with him while he is right, and part with him when he goes wrong.”
    • ” Nobody cares how much you know, until they know how much you care.”
    • “Justice denied anywhere diminishes justice everywhere.”
    • “Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.”
    • “You can protect your liberties in this world only by protecting the other man’s freedom. You can be free only if I am free.”
    • “As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”
    • “The pursuit of truth shall set you free   even if you never catch up with it”
    • “Experience is the wisdom that enables us to recognize in an undesirable old acquaintance, the folly that we have already embraced.”
    • “I had rather take my chance that some traitors will escape detection than spread abroad a spirit of general suspicion and distrust, which accepts rumor and gossip in place of undismayed and unintimidated inquiry.”
    • “There is no wealth like knowledge; no poverty like ignorance”.

Finally, a couple of quotes for those who seek our advice without first paying for it:

    • “A lawyer’s time and advice are his stock in trade.”
    • “Remember my advice is worth exactly what you are paying for it… Nothing.”
    • “Speaking of nothing, nothing is better than a good quote.”

6.   Analogies –  “One good analogy is worth three hours discussion.” – Dudley Field Malone.

I have outlined a number of analogies throughout my blog.  When you hear a good analogy, make a mental note of it; or, better yet, write it down.  I have a huge collection of analogies I have gathered over the years. The series of books designed for sermons called The Sower’s Seeds is a great source.  I am also partial to a book entitled, I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know by Jim M. Purdue.

A Recipe for an Effective Closing Argument

20120115-144530.jpgBelow is a summary of some thoughts dealing with closing arguments which I would like to share.  Like a good meal, a closing argument is something which requires careful preparation and a judicious mix of ingredients in the appropriate quantities.   Below is my recipe for an effective closing argument.

Goals

            While it may seem intuitively obvious, the central goal of any closing argument is to prevail on behalf of your client. Any other objective is secondary. This is your last opportunity to speak with the jury and you don’t want to waste it. Below are some thoughts concerning how to best compile the central goal on behalf of your client.

Strong Opening Grab their Attention

As far as I am concerned, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (approximately 10 pages) of your script are.  Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.

Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention.

Themes

Themes act as a unifying thread of your case. It is a thing that motivates the jurors to take action. There are number of potential themes.  Watch movies and see how things are developed and the best ones. In fact, I have a book that contains nothing but quotes from various movies which I tried to interject in my closings to make them more interesting and compelling. Below is an example of a closing argument that I gave which dealt with the themes “profits over safety” and “accepting responsibility”.  This is the same case discussed earlier in my materials on direct and cross examination.  Here is the introduction:

This is an important case.  It’s important for a lot of reasons – most importantly, as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. King did not accept responsibility.  Mr. King ignored facts.  Mr. King ignored laws.  Mr. King was concerned about one thing and one thing only and that was himself.  One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety.  There are a lot of good reasons why we have our safety laws, but as I discussed you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.  Below is a short list of some common themes:

Safety –  We do not allow profits to take priority over safety.

Keeping Promises – A man’s word is bond.

Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.”  That is what happened here.

David & Goliath [Right v. Might]  –  Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

 Right vs. Wrong –  You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

Failure to Accept Reality –  Don’t Confuse me with the facts, my mind is made up.

Greed/Selfishness –  Such things often lead people to take short cuts and ignore their responsibilities to others.

Struggling to Overcome Impossible Odds –  Everyone cheers for a person who bravely soldiers on against difficult circumstances.  Perhaps your client was seriously injured and has struggled to regain some semblance of his life.  His efforts are heroic and worthy of the jury’s admiration.

Themes in cases are virtually endless and only confined by your imagination.  All great literature, including the bible, strike various themes that describe why we and what we should do.  Tap into these themes and use them to unify your argument.

Keeping Your Promises

As you move through your closing, it is important to link back to the themes and promises you made in your opening statement to show that you have fulfilled the obligations assumed in your opening statement. That is one of the reasons why you don’t want to promise anything in your opening statement that you can’t deliver on during the course of the trial.

Likewise, if your opponent has made promises and failed to fulfill them, you want to be able to point this out to the jury.  That’s why you always want to keep good notes of your opponent’s opening and in some instances you may even want the court reporter to partially transcribe the opening to drive the point home so that it can be quoted verbatim from the official transcript of the court.

Provide a Clear Request for Action

At the end of your closing argument, you want to clearly request the jury to take particular action on behalf of your client. This request for action can be addressed as you move through your closing. However, I always have a strong ending in my closing requesting action on the part of the jury.  Closing argument is similar to a pregame speech provided by a coach to his/her players. You want to motivate the jurors to take the action desired on behalf of the client.

If you can’t clearly request action on behalf of your client, how is the jury supposed to do so?  Here, is an example of such a call to action:

Our client would rather have his life back than a $1,200,000 verdict.  I suggest to you this is a seven-figure case.  I’ll leave it to your discretion to go through and look at these damages and analyze the jury instructions.  This case has been a heavy burden on our client.  It’s been a heavy burden on the attorneys to work it up, as you’ve probably seen these last four days.  But today we sit down and the job becomes yours.  And we appreciate your time and your attention to the case and know that you’ll do justice for him.

How Can I Help You?

I remember seeing Kent Rowe Sr. of South Bend, Indiana give a fairly dramatic introduction to defense closing argument in a serious personal injury case.  He looked at the jury and  asked:  “How can I help you?”  He stood there a moment, paused, and once he had the eyes of all of the jurors he moved forward and did just that… helped the jurors.  He answered questions about how they go about their job in looking through the evidence and applying the facts to the Court’s instructions.  He showed them how to handle the form of verdicts.  He posed and answered questions that were likely on the jury’s mind concerning the issues in the case.  By opening in such a fashion he crawled into the jury box and truly helped them to fulfill their duty to the justice system.

That is what we are called to do every time we deliver a closing argument… Help the Jury   reach the outcome we desire for our client.

What the Post Hoc?

The Post Hoc fallacy derives its name from the Latin phrase “Post hoc, ergo propter hoc.” This has been traditionally interpreted as meaning “After this, therefore because of this.” This fallacy is committed when it is concluded that one event causes another simply because the proposed cause occurred before the proposed effect.  This is the very reason why two events being highly correlated does not mean one caused the other. There could be a third factor which causes the other two events to occur.  The two events might be related as cause-and-effect, but typically you need more than just a coincidence that the two things occurred at the same time.  A great analogy to make this point comes from one of my favorite books about teaching philosophy principles through jokes “Plato and a Platypus Walk into a Bar . . .”.  Here you go:

Ninety-year-old man  meets a beautiful young blonde  in her mid-20s and decides to marry her  against his family’s best advice.  Nine months later his young wife tells him that she is pregnant.  The old man proudly marches in  to see his doctor and announces  the “good  news”.  The doctor looking at the old man smiles  and says, “I want to tell you a story…  A man wakes up in the morning  in a hurry to go bear hunting and as he leaves his home instead of grabbing his shotgun,  he grabs his cane.   While out in the woods  he comes upon a bear,  raises his cane up, aims it at the bear and attempts to pull the trigger.  Immediately at that point, there is a loud bang and the bear drops over dead.  The doctor looks at the old man  and asks, “what do you think happened?”   The old man replies,  “why somebody else shot the bear. ”   The  doctor quickly quips, “my point exactly”.

Need I say more?

 

Shutting Off the Defense Doctor’s Flood of Misinformation

floodgatesIn my last post, I discussed an analogy to deal with tactics used by your opponent to muddy the waters.  Well, the problem is you have to drag the hogs out of the spring waters and it takes time to clear matters up. What if you could keep them out of the water altogether?

Have you ever had a defense doctor summarize everything under the sun regarding your client’s medical history in an effort to cloud the issues or mislead the jury, knowing you cannot afford to drag every doctor into court to undo the harm?   Well a good portion of such evidence may be totally inadmissible.

Contrary to what a number of attorneys argue. The Rules of Evidence do not permit the admission of materials relied upon by expert witness for truth of matters they contain, if the materials are otherwise inadmissible. Rules of Evidence Rule 703. Faulkner v. Markkay of Indiana, Inc., 633 N.E.2d 798. (Ind. Ct. App 1996).  The Rules simply allow the expert’s opinion to be based upon matters outside the official court record, if it is the sort of information typically relied upon in the expert’s field to render an opinion.

Evidence Rule 703 states, “[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by a experts in the field.” Ind. Evid. R. 702 permits the admission of expert opinion testimony but not opinions contained in documents prepared out of court by other medical doctors.  Evidence Rule 703 permits a testifying expert to rely on such materials, including inadmissible hearsay, in forming the basis of his opinion.

However, it does not allow an expert’s reliance on hearsay or other inadmissible evidence to be used as a conduit for placing unavailable experts or physicians’ statements before a jury.  In other words, the expert witness must rely on his own expertise in reaching his opinion and may not simply repeat the opinions of others. See Miller v. State, 575 N.E.2d 272, 274-75 (Ind.1991) (physician could rely upon but not repeat what another physician told him about diagnosis of defendant’s girlfriend).

Opinions or diagnosis of doctors who are unavailable to testify and not subject to cross examination do not come in as business records under Rule of Evidence 803(6).  Where a party seeks to admit medical or hospital records that contain opinions, the proponent of the records is required to establish the expertise of the opinion giver under Rule of Evidence 702.  Cook v. Whitesell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003); Wilkinson v. Swafford, 811 N.E.2d 374, 391 (Ind. Ct. App. 2004)(citing In re Matter of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004)), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Walker v. Cuppett, 808 N.E.2d 85, 97-98 (Ind. Ct. App. 2004).  If the proponent fails to satisfy this foundational requirement, then such records are inadmissible.  See  Also.  Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind.App.1998), (held that medical opinions within the certified medical records were not admissible).  Similarly, Rule of Evidence 703 permits experts to base their opinions on hearsay, but does not permit them to testify as to hearsay medical opinions.

Nor are they admissible as statements made for purposes of diagnosis or treatment under Rule of Evidence 803(4). That exception is limited to only statements made by patients, not doctors. Sibbing v. Cave, 922 N.E.2d 594, (Ind. 2010)(prohibited plaintiff from reciting hearsay testimony at trial about what doctor told her about her injuries and diagnosis).

Finally, if such opinions or diagnosis are included in your client’s medical history, such statements represent multiple levels of hearsay based upon conversations by the client with doctors or other healthcare providers who are not subject to cross-examination and whose qualifications to render an expert opinion have not yet been established.  Each level of hearsay must separately satisfy the requirements of Evidence Rules 702, 802 and 901 (authenticity). See Rule of Evidence 805 which deals with multiple levels of hearsay.  This rule states, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”

One caveat to note on cross-examination of the defense doctor.  Rule 703  does allow for you to inquire on cross examination at to the basis. It provides “The expert may in any event be required to disclose the underlying facts or data on cross-examination.”  However, be careful because you could open the door to inadmissible and damaging items being brought out on redirect.

Be ready for this issue and close the floodgates of misinformation through the use of timely objections or a motion in limine.

Character Assassination and the Mud Springs

 
 An ad hominem attack is a tactic whereby you attack the man instead of the validity of his argument or position. The fallacy of such an attack is that it completely ignores what is really important… Is the argument logical and accurate.  
Character assassination is an old tactic used to win battles whether they are at the ballot box or in the courtroom. If you don’t like someone, then you are less likely to side with them and more likely to forget what the case is really about and decide it on an emotional basis. In the Karen Silkwood case, Gerry Spence used the following analogy to point this out to the jury and counteract the defense’s tactics of misdirection and obfuscation leveled against Karen Silkwood who gave her life courageously exposing problems at a nuclear power plant: 
“I’ll tell you a bigger defense than that — and that’s getting drowned in mud springs. My favorite jurist has an old saying. He says if you want to clear up the water, you’ve got to get the hogs out of the spring. If you can’t get the hogs out of the spring, I guarantee you can’t clean up the water. During the course of this trial, you have observed a process by which you have been invited over and over again to get down into the mud springs where you can’t see — where you can’t understand — where things are all muddy. Getting jurors confused is not a proper part of jurisprudence — and getting people down in the mud springs is not the way to try a case.”
Don’t let your opponent drag you or client through the mud. Use this analogy to point this tactic out.

Looking Good and the Art of Cross-Examination

Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.  – John Henry Wigmore

There are a number strategies out there regarding cross-examination. One of the more advanced theories of cross-examination consists of the simple objective of “looking good.”  This theory of cross-examination is touted by Terry MacCarthy in his book MacCarthy on Cross-Examination, American Bar Association, 2007His book outlines a simple process which allows the cross-examiner to look good while exercising maximum control over the witness through the use of short declarative one fact  statements which require the witness to answer “yes”, “no”, or “I don’t recall/know”.  The essential strategy, begins by defining the area of questioning in the following way:

Q.   I am going to ask you some questions  about [the topic in question]. Understand?

Once the precise area of questioning  has been defined,  the questioning begins.  Below is a short example  of this form of questioning:

Q.   I am going to ask you some questions about the car that drove past you that night.  Understand?

A.   Yes.

Q.   It was a Ford?

A.   Yes.

Q.   Red color?

A.   Yes.

Q.  Two-doors?

A.   Yes.

Q.  Male driver? 

A.   Yes.

Terry MacCarthy demonstrates how this simple format  confines the witness  and allows you to control  the course of examination.   In addition, the use of the short one fact questions allows you to be the storyteller and prevents the witness  from taking control  of the examination.   Even if you are not scoring any particular  key points,  this format of questioning will allow you to  look good as an advocate and  speak directly to the jury.  He suggest that  you deliver the questions to the jury  and look to the members  of the jury  panel instead of  focusing your attention on the witness.  This allows you to  build report  and credibility  with the jury  the process of questioning the witness.  Throughout the course of his book,  MacCarthy covers various nuances  of the basic system.   However, the anatomy of the examination always follows  the format outlined above.    in this book, MacCarthy emphasizes  the need to  frequently define each new area of questioning through the basic setup question: I am going to ask you some questions  about [the topic in question]. Understand?    If the witness fails to cooperate answer the question, they will look bad.  The attorney on cross examination,  can simply come back to the short leading question  and ask for example:

Q.   Mr. Smith, I  am asking you questions about the car that drove past you that night.  Understand?

A.   Yes.

Q.   The car was red?

If the witness quarrels with the examiner,  the witness looks bad while the questioner continues to look good because there is no excuse for failing to give a straight answer to such a short and direct question.   Terry MacCarthy’s method  of cross-examination is covered in a series of YouTube videos. The link to the videos is listed below:

Part 1:   https://www.youtube.com/watch?v=QcOkG9-TpEo&index=15&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 2:   https://www.youtube.com/watch?v=f1kTgKZuQjY&index=14&list=FLpWQuA5b8JFENHxyeOk2mZg     

Part 3:   https://www.youtube.com/watch?v=XzzvvtJEtDo&index=13&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 4:   https://www.youtube.com/watch?v=BcTTakWYlbs&index=12&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 5:   https://www.youtube.com/watch?v=V3geSkXvS7g&index=11&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 6:   https://www.youtube.com/watch?v=LTWr03VIS2E&index=10&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 7:   https://www.youtube.com/watch?v=yuCF078wooo&index=9&list=FLpWQuA5b8JFENHxyeOk2mZg

The lectures by Mr. MacCarthy took place at Case Western University School of Law over the course of a week.  As a federal public defender Mr. MacCarthy knows how important it is to look good since oftentimes as a criminal defense attorney you have little to work with in defending your client.  If you are interested in purchasing the book, then click the title above  and you will be redirected to Amazon where you can purchase the book for approximately $80.   I trust you will find this method of cross examination both easy to employ and effective to use with all sorts of witnesses.

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