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.)

Trial Lawyers at the Scene of the Crime

Murder crime sceneIt might be the back alley of a dive bar where a man was bludgeoned to death, the potato chip aisle at a local grocery store where the plaintiff claims he slipped and fell, or a tiled and antiseptic operating room where your client’s husband died during routine surgery.  In each instance, regardless of whether the case is civil or criminal, the location is the same: it’s the “scene of the crime.” 

In your last case, how many times did you visit the “scene of the crime” before trial began?  Once?  Twice?  Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.”  Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene.  Law school buddies said I should visit the scene, but I didn’t listen.  Trial partners told me that I should visit the scene, but I didn’t listen.  Judges and senior attorneys said, “Go!”, but I didn’t listen. 

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

“Hey, I’ve got a full caseload, with dozens of pending cases.  99% of all cases never go to trial, so why waste my time visiting scenes on cases that I know will be resolved?”

“You don’t really expect me to go to the scene of the murder, do you?  That place is dangerous!  Heck, a guy got killed there!  (Um, I mean a guy was ‘allegedly’ killed there…)”

“I’ve seen the photos and a map of the area, so I’ve got a pretty good idea of what the place looks like.”

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted.  This man’s worldly wisdom was more valuable than anything I’d ever learned in law school.  He wasn’t a lawyer, but lawyers listened to him.  In fact, his influence extended far beyond the courthouse walls.  I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town. 

So who was this sage?  Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album.  Here’s what he told me: 

“Don’t try to describe the ocean if you’ve never seen it —
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations.  And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements.  If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you?  That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables.  When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement.  Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination.  Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination.  For example, compare these two direct examinations from Driving Under the Influence (DUI) cases.  The first is by a prosecutor who only read the police reports and talked with his witnesses:  

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Once you turned on your lights and sirens, did he stop his car?

A: No, he didn’t stop for about 250 yards, until he reached Miller’s Pub.

Q: Were there any other safe places to stop his car?

A: There were several, but he didn’t stop in any of them.

That’s not too bad, right?  You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing.  You also know that he passed by several other safe places to stop his car.  At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related.  But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Just past the Dunkin’ Donuts is a Waffle House, right?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Once you turned on your lights and sirens, did he stop in the Waffle House parking lot?

A: No.

Q: What about the Applebee’s after that?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Applebee’s parking lot?

A: No, he didn’t.

Q: How about Bennigan’s?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bennigan’s parking lot?

A: No, he didn’t stop there, either.

Q: Tell us about McDonald’s.  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he pull over into the McDonald’s parking lot?

A: No, he kept driving.

Q: Bob’s Big Boy?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bob’s Big Boy parking lot?

A: No, he drove right past it.

Q: The Hess gas station, is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Hess gas station?

A: No, he didn’t.

Q: Officer, where did the defendant finally stop his car?

A: About 250 yards after I first turned on my lights and sirens, at Miller’s Pub.

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses.  This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal.  Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you.  When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important.  Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

  • “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
  • “That day was a clear day, wasn’t it?”
  • “Not a cloud in the sky, right?”
  • “The sun was shining brightly from the west.”
  • “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
  • “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
  • “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
  • “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
  • “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
  • “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not.  Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go.  You’ll be glad you did, and so will your client!

Speak Your Witness’s Language

When I think of horses, I typically think of Kentucky and the Kentucky Derby.  But did you know that the official “Horse Capital of the World” isn’t located in Kentucky?  Surprisingly, it’s located just an hour or two north of where I live, in Marion County, Florida.  Marion County is filled with tall oaks, rolling hills, and LOTS of horses.  In fact, according to census figures, there are more horses in this county than any other county in America.

Earlier this week I was teaching a trial advocacy program in the middle of horse country, and that’s where I met Buddy.

Buddy the ClydesdaleBuddy is a horse.  More specifically, he’s a Clydesdale, and he lives on a large paddock behind the Ocala Hilton hotel where I was staying.  I went outside to pet him and was amazed at how big he was.  I’ve been around horses before (remind me to tell you about the cattle drive in Montana that I did with my brother a few years ago), but Clydesdale horses always amaze me.   They’re magnificent animals, and they’re absolutely HUGE.

I was curious how big he was, so I went inside the hotel to ask.  The lady at the front desk told me, “Oh, he’s pretty big — about 16 hands or so.”  I smiled and told her “thank you,” but there was one slight problem: I had absolutely no idea what she meant.  I wanted to say, “16 hands?!?  What the heck are you talking about?” Instead, I decided I didn’t want to look dumb, so I simply said, “Thank you,” and left the building.

As you’d probably expect, people who work with horses have their own vocabulary.  In horsing communities, a “hand” is the accepted unit of measurement for determining the size of a horse.  The story behind it is that a king wanted to measure his favorite horse, but since he didn’t have a measuring device, he used the only thing he knew would be consistent: the palm of his hand.  Since then, the “hand” has become the accepted unit of measurement for equines.  To determine the horse’s height, you measure from the ground to the top of the withers (the last hair of the mane on most equines), with “HH” after the numbers standing for the number of “Hands High.” 

I learned an important lesson from that exchange. 

Regardless of whether your witnesses are horsemen, doctors, police officers, etc., they’re going to have their own language.  As the trial lawyer, you’ll invest the effort to learn their language so you can communicate with your witness.  Before long, you’ll become so fluent that you won’t even notice when a few foreign terms casually creep into their testimony.

Here’s the problem:  Your jurors don’t speak that foreign language, and they’re not going to understand what’s being said.  Like me, they’ll probably be afraid of looking dumb, so they won’t speak up and say, “Excuse me, I have no idea what you’re talking about.”   Instead, they’ll quietly sit in the jury box, pretending to understand, and completely miss the most important evidence in your case.

When these foreign terms sneak into a witness’s testimony, you need to ask the witness, “Could you please tell us what [FOREIGN TERM] means?”  Your job is to ensure that your jurors understand the courtroom testimony.  Train yourself to listen with a layman’s ear, and these foreign terms will leap out at you.   Translate them for your jurors, and you’ll never again have to worry about them missing an important piece of evidence because they didn’t speak the witness’s language.

[By the way, a “hand” is 4 inches high, so Buddy was about 64 inches /162.5 cm tall at the shoulders.  That’s BIG!]