Avoiding Gunfights During Cross-Examination

If you were in the police academy, one of the most important things you would learn is how to keep safe when you’re out on the street.  To stay safe, you’d want to learn how to prevent verbal confrontations from escalating into physical fights, and how to prevent physical fights from escalating into knifefights or gunfights.  As it turns out, one of the easiest ways to prevent situations from escalating to the next level is by keeping your emotional level lower than the perp’s emotional level.  (One of the other things you learn in police academy is how to use cool words like “perp.”)

For simplicity’s sake, let’s assume that the scale for emotional levels runs between 0 and 10.  At level 0, you’ve got the Dalai Lama on quaaludes.  You’re calm, cool, and collected, and nothing in the world can upset you.  At the other end of the spectrum, imagine Bill O’Reilly and Keith Olberman battling for control of the country’s political mindset in a winner-takes-all steel cage death match battle royale.  At this level, you’re angry that you can’t get angrier — everything upsets you.

So let’s say that you’re a rookie cop out on the street dealing with someone at level 5.  To prevent the situation from becoming more violent, you’d want to keep your emotional level lower than theirs, preferably at least 2 levels lower.  By talking slower, being quieter, and acting calmer than the other person, you can hopefully defuse the situation by bringing the other person’s emotional level down to yours.

But what if you decided to approach the person on the same emotional level, or even worse, at a higher level?  When you’re at a more intense level, then the other person will usually rise to the challenge and increase their level, too.  For example, if the other person is calm, but you start yelling at them, they’ll ratchet up their emotional level and start yelling at you.  In return, you’ll get angrier, and start yelling louder or more profanely.  Before long, if one of you doesn’t step back, you’ll find yourself in a physical confrontation (or worse).

That’s why good police officers are able to avoid physical confrontations, because they know how to keep themselves “below” the other person’s level, and ensure that the situation is resolved peacefully.

But here’s the funny thing about police officers…

Despite all of their training about de-escalating confrontations with people out in the streets and avoiding violence by keeping their emotional level below the antagonist’s level, many of them seem to do the exact opposite when they walk into a courtroom!

Have you ever witnessed a defense attorney cross-examine a police officer?  It often sounds like this:

Defense lawyer: Good morning, officer.  I’d like to ask you some questions about your report.

Police officer: !@%$#%@ you, I want to punch you in the face.

Okay, that’s a bit of an exaggeration.  But if you’ve spent much time in the courtroom, chances are you’ve seen a witness fall apart during cross-examination by letting their emotions get the best of them.  It’s not just police officers — expert witnesses, corporate officers, lay witnesses — anyone can lose their cool in the courtroom.

For example, here’s the deposition of a CEO who got a little upset during his deposition:

(Ultimately, he and his lawyer were fined $29,000 for his actions during the deposition.)

Unfortunately, when your witnesses lose their temper during cross-examination, jurors lose respect for the witness.  In an instant, your witness can move from “trusted observer” to “biased jerk,” forcing the jury to discount everything he says.  (It’s not just witnesses, either.  If you lose your temper with a witness, even when the witness deserves it, you’ll sacrifice your credibility with the jury.)

So how can you prevent emotions from taking control in the courtroom?  How do you ensure that your witnesses come out on top by keeping their emotional level lower than the cross-examiner’s?

The first thing to do is to help your witnesses understand how untrustworthy they look when they lose their cool.  Videotape the witnesses during your mock cross-examinations back in the office, and make them watch the videotape.  Often, nothing needs to be said.  For many witnesses, this is the first time they’ve ever seen themselves on video, and once they see how undignified they look when they get upset, they’ll understand why you want them to monitor their emotional level.

Once they’ve seen how they look when they get upset, the next step is to help them understand what is triggering their anger.  Is it a specific factual topic?  The examiner’s tone?  An implied (or explicit) accusation?  By identifying the triggers, you’ll prepare your witness to anticipate when they’ll get upset during cross-examination, and help them avoid the confrontation.

You’ll also want to teach your witness which tactics your opponent uses to get under people’s skin and trigger their anger.  Many attorneys are one trick ponies.  Rather than using solid cross-examination skills, these lawyers will rely on raising their voice, rapid-fire questions, attacking integrity, misstating the witness’s name or rank, forcing the witness into “I don’t know” responses, staring down the witness, or other “tricks” that anger the witness.  If your witness is prepared, they’ll know to expect the lawyer’s trick so they won’t be taken by surprise and can maintain their calm exterior.

Finally, you’ll want to prepare your witnesses for what they should do when they recognize that they’re starting to lose their cool.  Remind them to slow down, take a breath, and pause before answering.  Whatever it takes, they need to keep their emotional level lower than the cross-examiner’s.  If they can’t, the jury will ignore what they say, and their testimony will be worthless.

Cross-Examining Your Client: You Play Like You Practice

One of the most important pre-trial preparation steps you will undertake is getting your client ready for cross-examination.  You know that no matter how well you prepare the rest of your case, if your client falls apart during cross-examination, the case may be lost.  Yet despite its importance, many trial lawyers’ client cross-examinations preparations are woefully inadequate.

The reason their attempts fall short isn’t because the attorneys don’t know what topics to tackle, and it’s not because they don’t know how to frame their questions.  The reason they fall short is because most trial lawyers are afraid to practice like they’ll play.

One of my favorite maxims from sports is “Practice like you play.”  From little league to the professional leagues, coaches at every level of play invoke this phrase to push their players, because they know that a player’s performance during practice determines his level of success on the field.  If a player can perfectly execute drills during the third hour of practice, when his body is weary and ready to give out, then you can be assured he’ll be able to perfectly execute those same skills during the final moments of the game. 

One of the worst things coaches can do is to ease up on their players when they get tired during practice.  If he lets them take it easy or run at 3/4 speed, that lack of discipline will come back to haunt the team during the next game.  By pushing his players hard and expecting them to give 100% during practice, the coach ensures that his players develop strong habits that will carry over to the field and help them win games.  The only players who prefer “easy” coaches are the players who don’t care about winning.  Winners want the coach who will push them to their limits during practice, so that the gameday adversity seems easy by comparison.

The maxim of “Practice like you play” is just as true in the courtroom as it is on the football field.  That means you need to prepare your client for the type of cross-examination that he should expect in the courtroom.  That means you don’t cross-examine him at 1/2 strength, or 3/4 strength, or even 7/8 strength.  You need to rev it up to 100% and attack your client with the same intensity (or greater) that he’ll confront in the courtroom. 

Unfortunately, many trial lawyers aren’t willing to do this.  They’ll tone down their attacks when preparing their clients for cross-examination, because they want to be “nice” to their clients.  After all, the client is the guy who pays the bills, right?  You may respect your client, you may like him, you might even be friends with him…  but not during these preparations.  Put aside your natural inclination to be nice to the people you like, because you’ll be doing your client a terrible disservice when preparing him for cross-examination if you’re “nice” to him.

The harshest cross-examination your client should ever endure is the one that will take place in your office before he testifies, because that will make the cross-examination he faces on the witness stand seem easy by comparison.  You don’t want your client to step down from the witness stand and think, “Holy crap, I wasn’t prepared for that!”  You want him to tell you, “I thought that guy was going to be a lot worse than he was.  His cross-examination wasn’t nearly as bad as I thought it would be!”

As coach Paul “Bear” Bryant said, “It’s not the will to win, but the will to prepare to win that makes the difference.”  Remind your client about the purpose of the preparation session: you’re preparing to win.  If you and your client are willing to prepare to win, your client’s cross-examination session needs to be rough.  Make him as uncomfortable as possible.  Cross-examine him as harshly as your opponent will.  Even harsher.  Unload on him with both barrels, giving him the most rigorous cross-examination you can muster.

During this preparation session, he may hate you for it.  He may curse at you or threaten to fire you.  “Why are you doing this,” he’ll ask, “do you hate me or something?”

No, of course you don’t.  Just like the demanding coach who pushes his players harder than they’ve ever been pushed before, or the drill sergeant who pushes his recruits to their breaking points, you’re not doing this because you hate him.  The reason you’re pushing them so hard is because you love him, and you know that if he doesn’t practice like he intends to play, he’s going to get killed when he steps onto the field of battle.

Cross-examine your client as vigorously as you can, and “practice like you play.”  In the short run, he may hate you for it, but eventually, he’ll be glad you pushed him as hard as you did.  (He just may not get around to saying “Thank you” until after you’ve won the case.)

Cross Examining a Witness? Safety First!

Elliott at the firing rangeHave you ever been to a gun range?  Up until this year, I’d never been to one.  Other than displaying firearms to the jury during criminal trials, I hadn’t held a firearm in over 20 years.  The last time I’d actually fired a gun was back in Boy Scout camp, and I’d been a lousy shot.  That’s why it was a bit of a surprise for me earlier this year when I suddenly had the urge to find a gun range and go target shooting.

Obviously, safety is a huge concern at every gun range.  First, they had me sign a waiver that basically said, “We aren’t liable for ANYTHING.  Period.”  After that, they ran me through the basics of loading, holding, and firing a handgun.  Finally, they had me read through the list of range rules:

RANGE RULES

  1. Keep your finger off the trigger until you’re ready to fire.
  2. You must wear shooting glasses or tempered eyewear protection at all times.
  3. Ear protection must be worn at all times.
  4. Always point your firearm in a safe direction.
  5. All firearms must be open and cleared except when on the firing line.
  6. All loading and firing of firearms must be done at the firing station.
  7. If a problem occurs, place your weapon on the firing stand and contact a range operator immediately.
  8. Unload your firearm and remove the magazine before leaving the range.
  9. Alcoholic beverages, drugs, or individuals who have been consuming those items will not be permitted in the firing range.
  10. No more than 2 people are permitted at each firing station at any time.

The purpose of all these rules is to keep everyone safe.  But interestingly, when you study the list, you’ll discover that there’s one rule that’s probably more important than all of the others.  Which rule is it?  “Rule #4: Always point your firearm in a safe direction.”  Following this one rule eliminates the majority of all range accidents.  In fact, even if shooters ignored the other rules, as long as no one ever pointed a gun at anything they didn’t intend to shoot, everyone’s shooting experience would probably be a safe one.

But safety isn’t just an issue on the gun range.  As a trial lawyer, you need to be concerned with your safety during trial.  One of the most dangerous areas of trial seems to be the area of cross-examination.  As the old legal maxim says, “More cross-examinations are suicidal than homicidal.”  Luckily, someone developed a set of rules to keep you safe during this dangerous activity.  These rules were first presented at the American Bar Association’s 1975 annual meeting by Prof. Irving Younger, who titled them “The 10 Commandments of Cross-Examination:”

  1. Be Brief
  2. Use Plain Words
  3. Use Only Leading Questions
  4. Be Prepared
  5. Listen
  6. Do Not Quarrel
  7. Avoid Repetition
  8. Disallow Witness Explanation
  9. Limit Questioning
  10. Save the Ultimate Point for Summation

Much like the rules of the gun range, however, one of these commandments is far more important than all of the others.  If you follow this single commandment, you will control witnesses, streamline your cross, and avoid the majority of pitfalls most lawyers encounter during cross-examination.  Which one is it?  “Commandment #3: Use Only Leading Questions.”

Notice that it doesn’t say, “Use Only Leading Questions (Most of the Time).”  It doesn’t say, “Use Only Leading Questions (Unless You Don’t Feel Like It).”  It doesn’t even say, “Use Only Leading Questions (Except When You Think the Witness Can’t Give You a Bad Answer).”

No, the commandment is simple and direct: “Use ONLY Leading Questions.”

In the past few weeks, I’ve had the opportunity to watch several attorneys cross-examine witnesses.  Overall, most of their cross-examinations were effective, but there were still a few times when the witness, rather than the lawyer, seemed to be in control of the examination.  Here are a few of the problems I saw:

  • Witnesses getting out of control
  • Witnesses volunteering damaging information that the jury shouldn’t hear
  • Lawyers arguing with witnesses

Without fail, every time that there was a problem, it was after the lawyer asked a non-leading question.  Every time that the lawyer stopped asking leading questions, the witness attempted to exert control and re-tell their story.

Why would you ever abandon leading questions?  Leading questions are one of the few tools that you’re given to level the playing field during cross-examination, so why wouldn’t you want to use them?  Whenever you ask open ended questions, you give the witness the opportunity to re-tell their story.  Let’s face it — if you really liked their story, you would have called them during your case-in-chief.  You don’t want to hear their story again during cross-examination…  You want to tell your client’s story.

To make sure that happens, every question that you ask during cross-examination must be a leading question.  To ensure that your questions are all leading questions, you must eliminate these deadly words from your vocabulary during cross:

Who?
What?
Where?
When?
Did…
How?
Why?
Explain…
Tell us…

Sharpshooter!These are wonderful words when you’re conducting a direct examination, but they can wreak havoc during your cross.  Whenever you ask a question that starts with one of these words, you give the witness permission to explain their story.  The worst words in the entire list are the last two: “Why?” and “Explain…”  When you start your question with either of these words, you give the witness carte blanche to explain why they did what they did.  (Trust me, you won’t like the answer.)  Just like at the shooting range, if you want to be safe, you need to follow the safety rules without exception.  Make sure that every question you ask is a leading question, and you’ll ensure that your time on the firing line is a safe and enjoyable experience.