by Vince Parrett
All business trial lawyers can benefit from Shane Read’s new book, Winning at Cross-Examination. By focusing on the importance of creating compelling bottom-line messages, Read shows how cross examination is done right by some of the best trial lawyers alive using examples like David Boies in the Proposition 8 trial challenging California’s ban on same-sex marriages.
The golden thread that runs throughout Read’s book is that to effectively cross-examine a witness you must first develop a bottom-line message that will show why you should win. Developing a bottom-line message before crafting your cross-examinations will focus you on what is most important and thereby help you ask the right questions. And it will stop you from going down rabbit holes that waste the valuable time of counsel, witnesses, and the court—and even worse, bore the jury.
Likewise, the topics that you choose for your cross-examinations should advance your bottom-line message to win your case. To help you select the right topics for a successful cross, Read shows you how to use the acronym CROSS:
- Credibility: challenge by showing a witness’s (1) favoritism for one side, (2) past criminal convictions or evidence of untruthfulness, (3) murky perceptions of what happened, or (4) memory of past events that is too good;
- Restrict damaging testimony: show the jury a witness’s lack of knowledge about important matters;
- Outrageous: exploit witness statements that exceed the limits of what jurors will believe as true, e.g., “It depends on what the meaning of ‘is’ is” or “I smoked, but I never inhaled”;
- Statements that are inconsistent: impeach with statements made by the witness prior to trial that are inconsistent with trial testimony; and
- Support your case: Read considers this one of the most neglected tools in an attorney’s arsenal on cross. For even if a witness has hurt you on direct, you can still ask many questions that will support and highlight your bottom-line message to the jury.
Interestingly, Read’s advice to focus your cross on crystal-clear themes conflicts with some of Irving Younger’s famous Ten Commandments of Cross-Examination, which many of us learned in law school or in CLE courses on trial advocacy. Irving Younger, a distinguished professor of trial techniques at Cornell Law School, attorney at a major New York law firm, and Judge on the Supreme Court of New York City, was a strong believer in his commandments. He wrote, “I cannot tell you how powerfully I want to preach these Ten Commandments. You should never violate them; if you do, you will want the ground to open up beneath your feet, so that you will sink in and be devoured forever. Every time you violate these commandments, your case will blow up in your face. . . . They come from on high; they must be obeyed.”
But Read begs to differ, arguing that some should never have been included in the list and are “flat-out wrong.” Among the Ten Commandments, Read highlights in bold those that are wrong:
- Be brief.
- Use plain words.
- Use only leading questions.
- Be prepared.
- Listen.
- Do not quarrel.
- Avoid repetition.
- Disallow witness explanation.
- Limit questioning.
- Save for summation.
While five of them are good, Read explains how the other five “are so incorrect that they undercut his whole list.” For instance, in his Tenth Commandment, Younger proclaimed that “you should save the ultimate point for summation” and argued that during your cross you should ask “the one question” that the jury will not understand why you asked—but you ask it anyway, because you know you can explain it in closing argument. Younger preached that your question will be so intriguing that the jury will think about it for the rest of the trial and wonder why you asked it; then you can give them the prize in your closing argument.
But Read shows that the reality of how jurors make decisions—they make snap judgments about you and your cross—makes Younger’s Tenth Commandment bad advice. You need to grab your jurors’ attention with your bottom-line message and never let go. Jurors are not going to spend any time thinking about your “clever” question after you asked it. They are not going to be “intrigued” by it and as a result wait breathlessly throughout the trial for a prize you will give them during your close.
Instead, by focusing your questions on your bottom-line message, Read argues that you should never wait until closing argument to tie up the reasons for asking your questions on cross-examination. So Read would replace Younger’s Tenth Commandment with, “Never save it for summation. Make your points on cross now.” The jury is contemporaneously deciding who won the battle of cross-examination, and it’s up to you to show them clearly that you won.
Regarding Younger’s Ninth Commandment to “limit questioning,” Younger uses the following cross-examination from a criminal trial for assault to make his point that you must avoid asking “the one question too many”:
Q. Where were the defendant and the victim when the fight broke out?
A. In the middle of the field.
Q. Where were you?
A. On the edge of the field.
Q. What were you doing?
A. Bird watching.
Q. Where were the trees?
A. On the edge of the field.
Q. Were you looking at the birds?
A. Yes.
Q. So your back was to the people fighting?
A. Yes.
Younger declares that after getting that helpful answer, “You stop and sit down. And what will you argue in summation? That he could not have seen it. His back was to them. You have challenged perception. Instead, you ask the one question too many:
Q. Well, if your back was to them , how can you say that the defendant bit off
the victim’s nose?
A. Well, I saw him spit it out.”
Younger says that “this is the kind of answer you will get every time you ask the one question too many.”
But Read says this is a bad commandment and terrible example. Why? Because if you don’t ask the last question, the prosecutor surely will ask it on redirect examination. Your momentary “victory” on cross-examination would be immediately snatched away when the prosecution asks the “one question too many” that you cleverly avoided asking. When the prosecutor does this, you not only look foolish, you also look like you were trying to hide the truth.
Younger’s example is also a bad one because it assumes that the prosecutor somehow did not discover before trial the key fact that this witness saw the defendant spit the victim’s nose out of his mouth. But how realistic is that? If the prosecutor even briefly interviewed the witness before trial, wouldn’t the witness tell the prosecutor about that unforgettable sight? That’s why Read would change this commandant to: “Be the truth-teller in the courtroom.”
Likewise, Read shows that the example that Younger used to support his Eighth Commandment—“disallow witness explanation” —actually undermines it completely. Younger used a cross examination by Abraham Lincoln, representing a defendant charged with murder, of the star witness who claimed to have seen the defendant hit the victim on the head:
Q. Did you actually see the fight?
A. Yes.
Q. And you stood near them?
A. No, it was about 150 feet or more.
Q. In the open field?
A. No, in the timber.
Q. What kind of timber?
A. Beech.
Q. Leaves on it rather thick in August?
A. Yes.
Q. What time did all this occur?
A. Eleven o’clock at night.
Q. Did you have a candle?
A. No, what would I want a candle for?
At this point, Younger insists that anyone but a “genius like Lincoln” must “stop and sit down. The witness has been impeached. He could not have perceived the murder.”
But Read argues that it would be a mistake to stop and sit down for three reasons: First, by abruptly stopping and sitting down when the witness just asked a legitimate question that the jury may be interested in, you’re giving the jury the bad impression that you’re hiding the truth, that you’re not a truth-teller in the courtroom. The second problem with sitting down is that on redirect examination the prosecutor will be sure to protect the witness by phrasing the question this way:
Q. Let me start where Lincoln so abruptly stopped. Do you remember asking him why you would need a candle before he abruptly sat down?
A. Yes.
Q. Let me ask you the question that he deliberately ignored. Is there a reason that you did not need a candle?
A. Yes. I could see because there was a full moon.
The third problem is that Younger’s example does not make his point because the last two questions about the time of night and whether the witness had a candle to see by do work if there had been no moonlight that night. So to win this cross you don’t need to be a “genius,” you only need to ask a few more questions to show that there was no moonlight—just like Lincoln did:
Q. How could you see from a distance of 150 feet or more without a candle at eleven o’clock at night?
A. The moon was shining real bright.
Q. A full moon?
A. Yes, a full moon.
Lincoln then pulled out an almanac and asked the witness:
Q. Does the almanac not say that on August 29 [the night of the murder], the moon had disappeared; the moon was barely past the first quarter instead
of being full?
A. [Witness does not answer.]
Q. Does not the almanac also say that the moon had disappeared by eleven o’clock?
A. [Witness does not answer.]
Q. Is it not a fact that it was too dark to see anything from 50 feet, let alone 150 feet?
A. [Again, witness does not answer.]
Regarding Younger’s Sixth Commandment, “Do not quarrel,” Read explains that this would be correct if Younger meant “do not argue with the witness”—but Younger meant something different. Younger wrote that if during your cross-examination you get an answer that is “contradictory, absurd, patently false, irrational, crazy, or lunatic,” you should stop and sit down.
Reads argues that “instead of sitting down, highlight the irrational answer for the jury.” This ties back to Read’s central theme that “you should use cross-examination to argue your case to the jury”—even where you know that the witness will give negative answers. Read encourages you to drive home the themes of your case through cross-examination, especially in the face of hostile answers, for two reasons: First, you want to remind the jury in your questions of facts that support your case. Second, you want the jury to contrast the truth of your questions with the lies of the defendant’s answers. For, once you “have credibility with the jury, each of the witness’s denials will be a further nail in his coffin.”
Finally, Younger’s Third Commandment proclaims, “use only leading questions.” But Read shows how that makes for a boring cross-examination and can even undermine it if pushed too far. Read argues that it would be much better if this commandment read, “Only ask leading questions unless the answer to a non-leading question cannot hurt you.” For it is perfectly fine to ask the witness to explain something if you know that whatever the explanation will be, that answer will not hurt your bottom-line message to the jury.
David Boies in the Proposition 8 trial is one of many powerful real-life examples that Read shows of brilliant trial lawyers on cross getting right to their bottom-line message. The key opposing expert, David Blankenhorn, opined during his direct examination that California’s ban on same-sex marriages should be upheld because children raised with one biological parent are worse off than children that grow up with two married biological parents. On cross, Boies wasted no time in challenging that assertion. After an exchange with the witness about different types of studies, Boies goes straight for the kill:
Q. Let me jump right to the bottom line, OK, sir?
A. Good.
Q. Are you aware of any studies showing that children raised from birth by a gay or lesbian couple have worse outcomes than children raised from birth by two biological parents?
A. No, sir. Would it be OK for me to say additional—
Q. It would not be OK for you to volunteer anything. I heard your—the speech that ended, and I’m really trying to move along; OK, sir? You will have a chance to make speeches when your counsel is asking you questions.
A. OK.
Boies did not follow Younger’s Tenth Commandment to ask subtle questions and tie everything up in closing. Instead, what did Boies do? He tells the witness and shows the trier of fact exactly what he wants to prove on cross, by confidently proclaiming: “Let me jump right to the bottom line, OK?” By making his bottom-line message through cross and never losing control of the examination, Boies won the cross, and won the trial.
Vince Parrett is a litigation partner at Bergeson, LLP in San Jose, California. After having started his career as an officer and trial lawyer in the U.S. Navy JAG Corps, Vince focuses his practice today on business disputes in Silicon Valley going to trial.