Should You Call the Witness a “Liar”?

Have you ever dreamt of conducting a “perfect” impeachment during cross-examination?  You know, the type of cross-examination that usually only happens in the movies,  impeaching the witness by pinning down their in-court testimony, and then calling them a “liar” when you confront them with undisputed proof that shows their statement is false?

Almost every lawyer I know salivates at the prospect of impeaching a witness like that.  But before you start calling the witness a “liar,” let me share with you a lesson I learned from a Jedi Knight.

Just in case you’re one of the four people on the planet who’s never seen the Star Wars trilogy, let me give you a little background.  Our story starts “a long time ago, in a galaxy far, far away…”  In the first movie, Luke Skywalker is asking the Jedi Knight, Obi Wan Kenobi, about his father:

Luke Skywalker: How did my father die?

Obi Wan Kenobi: A young Jedi named Darth Vader, who was a pupil of mine, was seduced by the Dark Side of the Force.  He betrayed and murdered your father.

A clear and simple explanation, right?  But in the next movie, The Empire Strikes Back, Luke confronts Darth Vader.  During their light saber battle, they have this exchange:

Darth Vader: “Obi Wan never told you what happened to your father.”

Luke Skywalker: “He told me enough.  He told me you killed him.”

Darth Vader: “No — I am your father.”

So which is it?  Did Vader kill Luke’s father?  Or is he Luke’s father?  (I can’t believe you don’t know this stuff already.  It’s a heck of a lot more important than what happened to Mrs. Palsgraf on the Long Island Railroads!)  Luckily, our story doesn’t end there, and in the third movie, Return of the Jedi, Luke gets the answer to his question.  He returns to finish his Jedi training and asks Yoda if Vader is his father.  After Yoda confirms that Darth Vader is Luke’s father, Luke has this conversation with Obi Wan:

Luke Skywalker: Why didn’t you tell me?  You told me Vader betrayed and murdered my father.

Obi Wan Kenobi: Your father was seduced by the Dark Side of the Force.  He ceased to be Anakin Skywalker, and became Darth Vader.  When that happened, the good man who was your father was destroyed.  So what I told you was true.  From a certain point of view.

Luke Skywalker: A certain point of view?

Obi Wan Kenobi: Luke, you’re going to find that many of the truths we cling to depend greatly on our own point of view.

And that statement brings us to a valuable cross-examination lesson.  Just because the witness says something that you can prove is false, does that mean the witness is lying?  Maybe, maybe not.  But even if he is, before you bring out the heavy ammunition, ask yourself if you really want to drop the “L” word on your jury.

You don’t necessarily need the jurors to think the witness is lying, do you?  All you really need is for them to disregard his testimony, right?  It doesn’t matter why they disregard it, just so long as they do.  So why take on an extra burden for yourself?  And that’s why Obi Wan’s statement is so valuable.  If you can come up with a comfortable way for them to disbelieve his testimony, that’s all you need to do.

What Obi Wan is saying is that you don’t need to prove that the witness lied to the jurors, all you need to do is show that the witness was mistaken. If you can show the jurors that this witness’s “truth” is based on his own point of view, and his point of view differs from what really happened, the jurors can disregard the witness’s testimony, without being put in the uncomfortable position of having to call him a “liar.”

You probably already know that most jurors don’t like to think that witnesses are lying to them.  Most jurors have a difficult time believing that a witness can take the stand, raise his right hand, promise to “tell the truth, the whole truth, and nothing but the truth,” but then look the jurors square in the eye and lie to them.

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us.  But jurors don’t think like that.  Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them.  (Yes, they even expect 10x convicted felons to tell the truth.)  If you attack a witness’s testimony by calling him a liar, you’re going to need to prove that he lied.  If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

Before you plan your next cross-examination, ask yourself if you need to prove the witness is lying.  Is there an easier way to discredit his testimony?  Can you show the jury that his point of view conflicts with reality?  If so, consider making things easier for your jurors.  They may still decide to call him a “liar” in the deliberation room, but they won’t need to do it.  Just show them that they can disregard the witness’s testimony without calling him a liar, and you’ll make it easier for them to return the verdict you deserve.

Sources for Closing Argument Stories

During closing argument, you want to drive your arguments home to the jury.  It’s not persuasive to merely say, “The witness is wrong because she’s biased.”  You need to be able to help the jurors understand how that bias affected her testimony and why they shouldn’t believe her.  Before you start preparing your next closing argument, start collecting the stories and analogies that will help you persuade the jurors.  Here are nine resources to help you develop persuasive closing argument material:

1. Aesop’s Fables. Aesop’s Fables contains dozens of valuable themes for use in your next trial.   By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win.  The Tale of the Sour Grapes, the Tale of the Lioness and the Vixen, the Tale of the Wolf in Sheep’s Clothing — these stories will not only educate your jurors, they’ll also entertain them.

2. The Bible. I don’t know about you, but whenever I think of a persuasive “southern lawyer,” I envision an older, white haired gentleman wearing a seersucker suit, preaching to the jury in a southern drawl while pounding a well-worn leather bible on the rail of the jury box.  Quoting from the Bible in closing argument has been an effective persuasive tactic since…  well, since Biblical times, I guess.  Be aware of the caselaw in your local jurisdiction before quoting from the Bible (some courts explicitly frown upon the practice), but if you’re allowed, consider adding Biblical references to your closing argument.  You might employ entire stories, direct quotations of Biblical passages, or perhaps you’ll only allude to a “bite from the apple” or ask them not to “split the baby.”  If nothing else, at least read the entire book of Proverbs: It’s probably the best source of common sense arguments you’ll ever find.

3. Comic books. If you haven’t read Frank Miller’s The Dark Knight Returns, Marvel’s Civil War series, or Alan Moore’s The Watchmen, you’re not only missing some great stories, you’re also missing out on some powerful themes and storylines that you can employ in your closing arguments.  In addition to these graphic novels, familiarize yourself with Superman and Lex Luthor, Prof. Xavier and Magneto, the Hulk and Bruce Banner, Spiderman and J. Jonah Jameson, and the rest of the comic book multiverse.  Life isn’t always “Good vs. Evil,” and neither are jury trials.  Comics can help you explain what jurors should do in those “gray” situations.

4. Things that happened to you in childhood. Take a few hours and write down the interesting stories of things that happened to you as a kid.  Did you ever take a candy bar without paying?  Get pushed around on the playground?  Look in the back of the algebra book for answers?  These type of stories resonate with jurors, because they usually have similar life experiences.  (It also helps to remind them that you weren’t always a lawyer!)  When you turn that candy bar story into an argument about why a witness is reluctant to tell the truth, or turn the algebra story into a compelling reason why your opponent’s expert fudged his work, jurors will have a better understanding of why your client should win.

5. Stories about your kids. Jurors want to listen to lawyers who they trust, so how can you show them that you’re trustworthy?  If you’ve got kids, you’ve got a shortcut for establishing your credibility with the jurors, because being a parent means that not only were you able to convince someone to tolerate you, you were able to convince them you were trustworthy enough to raise children.  All parents have similar stories of children saying “the darndest things,” blaming their siblings for broken items, and demonstrating (in the cutest way) dramatic life lessons.  Keep a written list of fun things your kids did and the lessons they taught you, and you’ll have an arsenal of compelling stories at your disposal.

6. Classic literature. As a trial lawyer, you should be well-versed in great literary works.  (Confession time: I didn’t actually read A Tale of Two Cities in 8th grade — I read the Illustrated Classics version.  It’s actually a captivating story in comic book form!)  Your familiarity with classic literature will provide you with an endless array of stories and analogies.  For example, you could illustrate the effect of circumstantial evidence by telling the story about how Robinson Crusoe fainted after discovering the footprint in the sand, because he knew he wasn’t alone on the island.  You might compare the plaintiff to Captain Ahab (Moby Dick), equivalate the defendant’s comments to “the black spot” (Treasure Island), or even describe the situation as a “Catch-22.”

7. Mythology. Did the Sword of Damacles dangle above the witness’s head during cross-examination?  Did your examination of their star witness open a Pandora’s Box?  Are you asking the jurors to untie a Gordian knot with their verdict?  Is your opponent asking your client to perform a Herculean task?  Don’t assume that your jurors know their mythology.  Instead, tell them a short, punchy version of the myth, and then show how it applies to your case.

8. Idiomatic expressions. Is it time for the defendant to “face the music?”  Was the company “flying by the seat of its pants?”  Is your opponent trying to “sweep something under the rug?”  Idiomatic phrases are an excellent tool for illustrating your point.  Here are two lists of English idioms to search:

http://www.learn-english-today.com/Proverbs/proverbs_A-K.html
(Alphabetic listing of idiomatic phrases)

http://www.learn-english-today.com/idioms/idioms_proverbs.html
(Idiomatic phrases listed by theme)

Before using the phrase, make sure that your jurors understand what you’re talking about.  For example, don’t just say it was a “red herring” argument, tell them the story behind the phrase, describing how convicts used red herrings to divert bloodhounds from their scent.

9. Movies. Is the informant selling out his friends to appease the government and protect his own interests like Lando Calrissian did in The Empire Strikes Back? Has your client been reliving every day since the crash like it’s Groundhog Day? Did the defendant force your client to make a Sophie’s Choice? Even terrible movies can serve as inspiration.  If you describe how the defendant’s actions ruined the company the same way Joel Schumacher’s Batman & Robin killed the Batman franchise, jurors will immediately understand what you’re talking about.

Do you have other recommendations? I’m sure I missed dozens of other worthwhile closing argument sources.  Tell me (and more than 10,000 other trial lawyers) where you find your closing argument ideas by posting a quick comment below!

The Trial Lawyer’s Library

When I began my career as a trial lawyer, I had no idea what books I was supposed to read.  There were hundreds of thousands of books in my law school library, but I wasn’t sure which ones were most important to developing my trial advocacy skills.  I read thousands of thousands of pages, looking for the best trial advocacy tips and techniques, and wasted a lot of time, energy, and money in the process.

Hopefully, this list will help you shortcut the process that I went through. In this article, you’ll find my recommendations for the books that a trial lawyer should read and digest.   You’ll note that I didn’t include books on trial advocacy, and that was done on purpose.  There are hundreds of trial advocacy books worth reading (as someone who dedicates yourself to improving your trial advocacy skills, you probably already have at least a dozen or more books on the subject, right?).  Instead, these books are intended to expand your horizons, maximize skills that weren’t developed in law school, and help you get the most out of your persuasive skills.

Influence, by Robert Cialdini
Want to know how to influence jurors?  This is the definitive text on the subject.  Includes persuasive techniques to improve your entire case presentation, from pre-trial preparations to closing arguments, as well as techniques for improving your pre-trial negotiations.

On Writing, by Stephen King
Great tips for telling stories and presenting more effective opening statements.  Replace the word “reader” with “juror” and you’ll feel like the book was written specifically for trial lawyers.

Remember Everything You Read: The Evelyn Wood 7-Day Speed Reading & Learning Program
You read thousands and thousands of pages while preparing for trial — this will help you do it faster and remember more of what you read!

Think and Grow Rich, by Napoleon Hill
The entire book should be mandatory reading for everyone who enters the business world, but there are great lessons for trial lawyers, too.  Focus on Ch. 1 (Desire) to see what it takes to become a great trial lawyer, and Ch. 9 (Power of the Master Mind) for assistance improving your trial advocacy skills.

How to Win Friends and Influence People, by Dale Carnegie
If you intend to make a career out of persuading jurors, you probably already have a dog-eared copy of this book on your bookshelf.  You’ll learn more about pre-trial negotiations and trial advocacy from this book than you did from your entire law school education.

The Art of War, by Sun Tzu
If you believe that trials are war and the courtroom is your battlefield, this book will help you prepare your battle plan for success.

The War of Art, by Steven Pressfield
Each morning, as soon as you wake up, “Resistance” attempts to keep you from being the best courtroom advocate that you can be.  This book shows you how to break past “Resistance” and excel at your profession.

Man’s Search for Meaning, by Viktor Frankl
Losing a trial is not the end of the world.  This book will help you get through the rough patches, especially if you lose a case, lose a client, or get dissuaded with the practice of law.

Quick and Easy Way to Effective Speaking, by Dale Carnegie
You speak for a living, so why not improve your presentation skills?   Loaded with great tips for improving your presentations to judges and jurors alike.

The Memory Book, by Harry Lorayne
If the correct objection or impeachment fact isn’t instantly available to you during trial, it’s worthless.  This book will help you improve your memory so that you can be more effective during trial.

The New Way Things Work, by David Macauley
An effective method of getting your ideas across involves the use of diagrams or images.   In this book, David Macauley shows you how hundreds of devices work.   With a combination of words and images, he makes difficult concepts easy to understand.  Using the same techniques, you can help your jurors understand complex issues and facts in your case.

Aesop’s Fables, by Aesop
This book contains dozens of valuable themes for use in your next trial.   By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win.

I’m sure that there are dozens of other useful books that I overlooked.  If you know of a book that other trial lawyers will find valuable, please take a moment to post a comment including your recommendation.