The Tempo of Cross-Examination (or, What Beethoven, Urban Meyer, and James Woods taught me about cross-exam)

In music, it’s not just the notes that create the tune.  It’s also the length of the notes and the empty spaces between the notes that define the music.  You don’t immediately recognize Beethoven’s Fifth Symphony because of the first four notes (“G-G-G-E”).  You immediately recognize it because of the tempo (“short-short-short-loooooooooooonnnnng”).

Tempo.  It doesn’t just affect the mood of the music, it also affects the difficulty level of the musical performance.  The faster the tempo, the livelier the tune, and the greater the performance difficulty.  The slower the tempo, the more somber the tune, and (generally), the easier it is to play.

Tempo’s effects aren’t limited to music.  I was watching a University of Florida football game and the commentator commented (after all, that was his job) that the Gators had increased the tempo of the game and were throwing the other team off of their game plan.  Whenever you force someone to do something faster (ex. juggling, talking, typing) they’re going to make more errors.  The losing team was missing tackles, dropping catches, and throwing interceptions, because they couldn’t control the tempo of their game.

How about you?  Who’s controlling the tempo of your trial?  Most importantly, who’s controlling the tempo of your cross-examination?  Often, the tempo of your cross-examination will determine whether or not it succeeds.

To successfully cross-examine, you need to be “quick.”  Increasing the pace of your questioning allows you to control what story gets told during cross-examination.  If the witness is lying, he’ll need time to think of the lie.  The faster your questions pummel him, the less likely his chances of maintaining the lies.  Control the pace of your cross-examination and you won’t give the witness time to fabricate his responses.  Control the tempo, and you control the cross-examination.

An example of tempo’s power to control cross-examination was demonstrated in the pilot episode for the TV show Shark. In the scene, the celebrity defense attorney-turned-prosecutor Sebastian Stark (played by James Woods) is telling his protégés that they must make the defendant (a woman accused of killing the man she just slept with after discovering their lovemaking had been taped) lose her self-control on the witness stand:

Assistant Prosecutor Raina Troy: A smart defendant like Jenny is not going to lose it on the stand.

Stark: Oh really?!?  Just for kicks and giggles, why don’t you step into the witness box.

If you enjoy watching James Woods act, you’ll enjoy what follows.  In the blink of an eye, his entire face, posture, and demeanor change.  In one instant, he’s jovial and joking.  In the next, he’s got on his cross-examination “game face” and launches into his attack:

Stark: Ms.  Troy, how old are you?

Troy: 29.

Stark: How many men have you had sex with?

Troy: What?!?

Stark: Your honor?

Judge: The witness will answer.

Troy: I have no idea.

Stark: More than 50?

Troy: I don’t…  of course not.

Stark: 30?  Am I getting closer?

Troy: You may keep a running count, but I don’t.

Stark: Have you ever contracted a venereal disease?

Troy: [Silence.]

Stark: Have you ever contracted a venereal disease?

Troy: Once…  In college.

Stark: So you enjoy unprotected sex then?

Troy: I was 20 years old.

Stark: Ever engage in S&M?  Bondage?  Sex with another woman?  Multiple partners?

Troy: Know what?  I’m done!

Stark: Is that a crucifix around your neck?

Troy: Don’t go there!

Stark: Are you a practicing Christian?

Troy: Yes.

Stark: Would you say you understand the teachings of your church?

Troy: [Silence, but he doesn’t pause, so there’s no room to answer anyway]

Stark: How do you reconcile that with your wanton promiscuity?

Troy: [Leaping to her feet in the witness stand]: You don’t know the first thing about me!  You may live in a fancy mansion but you are still a low rent ambulance chasing son-of-a-bitch!

Stark: No more questions, your honor.

The questions (“the notes”) aren’t what matters most.  It’s TV, so he’s not bound by the rules of evidence, and you wouldn’t (and probably shouldn’t) ask the majority of those questions.  What was fun to watch was the tempo of the questions.  It was relentless.  There was no room to let up.  If there were any silences during the exchange, it’s because they were planned by the writers.

Who’s controlling the pace of your cross-examinations?

As the examiner, you don’t have exclusive control over the tempo.  Your witness also has power to speed up or slow down the pace of the examination.  The witness can slow down the tempo by pausing before answering, adding innocuous comments to his answer, or asking you to repeat or restate your questions.

But as the examiner, you want to control the tempo.  You can make his pausing seem like he’s crafting his answer and isn’t being forthright.  You can craft your questions so that any answer besides “Yes” or “No” appears to be an attempt to avoid answering.  Finally, and perhaps most obvious, you can control the tempo by varying how quickly you ask your questions.

But how do you become “quick?”

Being quick starts before you even walk into the courtroom.  If you need to refer to notes or poke through boxes of stuff to impeach the witness, it’s impossible for you to be quick.  To be quick, you need to have a sharp memory, instant access to all of your impeachment material, and the ability to ask questions in a rapid-fire manner.  To do that, you’ll need to cram all of the information into your head and have it available for instant recall.

Don’t worry, you already know how to do this.

You thought that law school didn’t really prepare you to be a trial lawyer, but you’re wrong.  During exams, you had to cram an entire semester’s worth of information into your head, organize it, and then spit it out coherently and persuasively on the exam page.  Well, that’s perfect preparation for trial work.  When you prepare for cross-examination, you cram an incredible amount of information into your head.  Facts, figures, previous statements, lines and page numbers, motives to lie, biases, friendships, relationships, spatial comparisons, probabilities, timing, distances…  you cram it all inside your cranium.  Tomorrow, after the jury renders its verdict, you won’t need to keep this stuff in your head.  But for today, while you cross-examine the witness, you need to have
of it available with instant recall.  When you have instant recall of the information, you can deliver your questions at a rapid fire pace and control the tempo of the cross-examination.

Remember, tempo is more than just a musical element.  Tempo affects your entire trial, but its effects will be most apparent during cross-examination.  Before you cross-examine your next witness, spend some time thinking about the tempo of your questioning.  A great cross-examination is more than just the “notes.”  Prepare your timing, practice, and your cross-examination composition will be a symphony masterpiece.

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. Palsgraff!)  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.

How to detect “non-answers” during cross-examination

Prof. John Henry Wigmore argued that “Cross examination is the greatest legal engine ever invented for the discovery of truth.”  But that’s only true if the cross-examination is conducted by a skilled examiner.  Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it.  In the hands of a master craftsman, cross-examination can achieve remarkable results.  In the hands of a novice, it can often cause more harm than good.

To become a quality cross-examiner, you must master the ability to critically listen to  witness’s answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you’ll need to recognize is the “non-answer.”  Expert witnesses and well-prepped witnesses are the best masters of the “non-answer.”  At their finest, their responses don’t even appear to be evasive.  They’ll make it sound like they’ve answered your question, but in fact, they’re completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear. 

If you’ve ever watched a political interview, you’ve probably seen “non-answers” in action.  The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:

Q: Are you prepared tonight to say that you’ve never had an extramarital affair?
I’m not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I’m not prepared to say that about anybody…  I have acknowledged causing pain in my marriage…

Some of your witnesses have mastered the art of giving non-responsive answers.  It’s your obligation as a cross-examiner to ask follow-up questions and extract your desired answer.  Here are some examples of “non-answers” you should listen for:

Non-Answer #1: Completely Avoiding the Issue

Q: Does this skirt make me look fat?
I love you.  (Or you can try Dave Barry’s response: Sticking a fork in one or both eyes to avoid answering… it’s much less painful!)

Non-Answer #2: Describing Expected Procedures

Q: Did you request a CAT-scan?
It’s normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

Non-Answer #3: Saying What You Will Do or Hope to Do

Q: Do you support higher salaries for judges?
A: I think that’s an important issue that we should address.

Q: How soon will you have the weaponized virus contained?
A: We’re doing everything we can.

Non-Answer #4: Answering a Question with a Question

Q: Did you lock the store before you left that evening?
A: Why wouldn’t I?

Non-Answer #5: Telling What They’d Normally Do in the Situation

Q: Did you check for tire wear patterns?
Normally, I would…
Q: No, what did you do?

Q: Did you call for backup before approaching the car?
Usually, in these situations…
Q: What specifically did you do in this situation?

Non-Answer #6: Describing What Others Did

Q: Did you find any drugs in the car?
We found several packages of cocaine in the center console.
Q: No, what did you find?

Q: Who located the firearm?
A: Our SWAT team found the firearm in the back bedroom.

Non-Answer #7: Guessing or Supposing

Q: Did you read the warning label?
A: I’m pretty sure I would have.

Non-Answer #8: The Speech or the Argument

Q: I’ll ask for the fourth time. You ordered —
A: You want answers?
Q: I think I’m entitled to them.
A: You want answers?
Q: I want the truth!
A: You can’t handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives…You don’t want the truth. Because deep down, in places you don’t talk about at parties, you want me on that wall. You need me on that wall.  We use words like honor, code, loyalty…we use these words as the backbone to a life spent defending something. You use ’em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I’d rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a damn what you think you’re entitled to!

Non-Answer #9: Half-Truths or Half-Answers

Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.

Q: Did you order the Code Red?
A: I did the job you sent me to do.

To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately.  Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question.  Once you recognize what they’re trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.

One of the best ways to handle non-answers is to simply ask your question again.  For a fun example of someone doggedly refusing to answer a question, watch this clip from the BBC to see Jeremy Paxman’s interview of Home Secretary Michael Howard.  In the interview, Paxman asks the same question twelve times.  How many times does Howard actually answer the question?  You’ll need to watch the video to see!