Cross-Examination Strategies for Hostile Witnesses: Optimizing - - PowerPoint PPT Presentation

Cross-Examination Strategies for Hostile Witnesses: Optimizing Technology and Applying Psychology Tools

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THURS DAY, DECEMBER 19, 2013

Presenting a live 90-minute webinar with interactive Q&A

S andra F . Clark, S hareholder, Mehaffy Weber, Beaumont , Texas William E. Hammel, Part ner, Constangy Brooks & Smith, Dallas

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CROSS EXAMINING HOSTILE WITNESSES

Sandra F. Clark MehaffyWeber, P.C.

Beaumont/Houston/Austin, Texas 409.835.5011 ext. 432 SandraClark@mehaffyweber.com

6

Purpose of Cross Examination

“Cross examination is the ‘great engine’ for getting at the truth.” Ralph Fine

7

• Stake in outcome

– Party – Identifies with party – Reputation as witness – Takes a side

• Expert

– In the testifying business – Competitive: Wants to win

• Personality

– Dislikes your client – Aggressive personality – Dislikes litigation and lawyers

7

Why is a witness hostile?

8

Diffuse the Hostility

• Personality

– Disarm with your own personality – Know their background and find something common

• Experience

– Means they’ve done this a lot – Means they have lots of opinions out there – Sometimes that can help you

9

Scope of Cross Examination

• Rule 611(b) FRE – Cross

examination is limited to scope of direct examination and matters of witness credibility

• Most states have broader cross

than that; however, 10 states have adopted the federal model

10

Is Cross Examination Necessary?

• Did that witness hurt my case?
• Would asking questions improve or simply

reinforce bad testimony?

• How important is the witness?
• Does the jury expect cross?
• Can the witness be controlled or

impeached?

11

Develop a Plan For the Hostile Witness

• Establish a goal for any witness
• Decide the facts or opinions you

must establish with each

• Cross examination can be the most

interesting part of trial

12

Techniques for Cross

Ask leading questions? Usually

• Each question should advance your case
• Nail the witness with cross
• Every question must fit the plan
• Unless the answer is known or does not

matter . . . DO NOT ASK THE QUESTION!

13

More Techniques

• Prepare, prepare, prepare
• Outline the topics to cover
• Be organized
• Master all prior depositions, articles, and
• ther documents for the witness
• Investigate witnesses - the Internet can be

a wealth of information

14

Results of Internet Search

Q: You are on staff at M. D. Anderson Hospital? A: Yes. Q: Isn’t it true that M. D. Anderson Cancer Hospital has a website? A: Yes. Q: Have you ever had any articles published on the M. D. Anderson website? A: A few. Q: Do you remember one of your articles that appeared there just three months ago? A: I think so. Q: In that article, you talked about T-cell lymphoma, the very type of cancer involved in this case? A: I believe so. Q: And you wanted to be as accurate as possible? A: Of course. Q: Turn to page four of the article that was published there. A: Okay. Q: In this article, which you published on the web site just three months ago, you talk about what is known regarding the cause of T-cell lymphoma, isn’t that right? A: Yes. Q: Isn’t it true that you said the following: “No one knows what causes T-cell lymphoma.” Is that what you wrote just three months ago? A: That’s what it says.

15

Be Flexible

• Outlines are necessary - to a point
• Refrain from looking at the outline too often

. . . Jury will think you are insecure

• Non-leading questions have their place

. . . Allow the witness enough rope

• Even “Bad Answers” can work at times

. . . Shows witness Not credible

16

Example of No Flexibility

• Recognize that the best question may

arise from the answer, not the outline. For example: Q: Are you a married man? A: No, my wife died. Q: That is too bad. What was her cause of death? A: She suffocated. Q: What is your current address? (From the outline.)

Example of Inflexibility

17

Strategy

• Vary the routine
• f leading

questions

• Know the

difference between tough and mean

• Know when to

quit

18

More Strategy

• Cross allows you to call fewer

witnesses

• Avoids repetition of facts or details
• Moves the case along in Juror’s view
• Prevents opposing counsel from

scoring points through the witnesses you do not call in your case

19

Destructive Cross

• Discredits the testifying witness or

another witness

• Reduces persuasive value of the
• pposition’s evidence.
• Establishes control of the witness

both in his mind and in the mind of the jury

20

Don’t make the jury mad

• Do not demand a “yes”
• r “no” answer
• Do not quibble over

minor details

• Do not appear as a

“cross” examiner

• Do not treat every

witness as a liar

• Do not argue with a

witness

• Do not interrupt an

evasive witness

• Do not object unless you

have to

21

Supportive Cross Even from Hostile Witness

• Bolsters your case
• Helps your story
• Develops favorable

aspects of the case

• Supports your

witnesses

• Discredits other

witnesses

22

Experts

• Rule 702 FRE

(1) Will specialized knowledge assist trier of fact? (2) Are the opinions and methods reliable?

23

Experts

• Judge is gatekeeper

(1) Is expert’s reasoning and methodology scientific valid? (2) Have conclusions been tested? i.e. subject to peer review? (3) Is Methodology widely accepted?

Daubert v. Merrill Dow Pharmaceuticals 509 U. S. 579 (1993)

• Daubert application is flexible
• Should be applied to other technical experts

Kumho Tire v. Carmichael, 526 U.S. 137 (1999)

What to Save for Trial?

If your Daubert Motion will never be granted don’t use all your ammo; just build the necessary record for appeal

24

What to Save for Trial?

25

Handling the Hostile Expert

• Be Polite and

Professional

– Know your jurisdiction and expected behaviors

• Be Brief
• Be Strong
• Your demeanor

counts!

26

Always remember…

Your audience is the jury, not the expert

26

27

Controlling the Expert

• It is crucial to maintain control over an expert
• Do not allow the witness simply to restate or

explain

• Prepare a list of points that the witness must

concede

• Keep questions short to obtain a short

answer

• Do not skip around too much
• Undermine the value of an expert’s

credentials

• Show him to be biased

28

Controlling the Expert (Cont’d)

• Have impeachment material

immediately available

• Use his own words on video for

inconsistency

• Invade witness space
• Keep eye contact
• Make your points and move on

Impeachment

• The general rule is that a witness may not

be impeached on a collateral matter. A collateral matter is not admissible on any issue plead or on credibility of the witness

• States vary in the latitude allowed related

to collateral matters

– Truthfulness – Credibility - not moral character – Harassment, prejudice – Discretionary

29

30

Ethical Considerations

• Texas Disciplinary Rules of Professional

Conduct 3.04 “A lawyer shall not:

…(2) state or allude to any matter that lawyer does not believe is relevant…or that will be supported by admissible evidence…(4) ask any question intended to degrade a witness or other person unless question is relevant.”

• Similar concerns in model rules

31

Impeachment

• Demonstrate bias, prejudice or clear

partisanship

• Point to prior inconsistent statements
• Demonstrate that the testimony of the

expert is contrary to recognized authorities;

• Demonstrate that the testimony is

unreasonable or improper; and/or

• Attack the credentials or qualifications.

32

Example of No Flexibility

33

Example of No Flexibility

Q: Dr. , you came here from a trial in Florida, tomorrow you go to California? A: Yes Q: In all these trials, in all these states, you use the same slides, the same facts, the same opinions? A: Yes

• Q. And you gave the same testimony today without reviewing a

single document, deposition or shred of evidence about Mrs. Jones’ case that you will give tomorrow in another plaintiff’s case? A: I suppose so Q: Charging $500 per hour each and every time? A: Yes STOP!

Example of Bias

34

35

Example of No Flexibility

Undermine the Credentials: Undermine the Credibility

• Yet, you say you’re a board certified
• toxicologist. The organization that you

claim gave you that certification is the American Board of Forensic Examiners, correct?

• That organization is not a medical

board?

• Did you know that the group certifies

everything from dentists to accountants to nurses to policemen to social workers to homeland security?

36

Testimony on Qualifications

• You’re not certified by the American Board of

Toxicology because you couldn’t pass the test?

• You failed the same section twice now, is that

right?

• Included in that part that you failed twice was

carcinogenesis, right?

• And let’s see, also part of that section that you

failed twice was– hematopoietic toxicity, right?

• Which is what you are actually testifying about in

this case? I mean multiple myeloma is a hematopoietic cancer, right?

37

The Expert’s Publications

• Investigate peer review

process

• Explore publication in which

article was published

• Subpoena the background

information from the Journal

38

Undermine the Expert’s Methodology

• Simple admissions may debunk the

expert’s testimony

– Is testimony contrary to common sense – Is it grounded in science – Does it contain speculation or conjecture – Is cross too subtle

• A juror will recall a concession from an

expert witness that his testimony is speculative or mere conjecture

Example of No Flexibility Example of Honest Witness

39

40

Fact Witnesses

• Fact witnesses may be hostile,

neutral or friendly – know which type

• A hostile fact witness must be

controlled

• May provide necessary facts for

your case

41

• Take every potential witness’ deposition
• Obtain clear answers to clear questions
• The fact witness deposition may be his

trial testimony

• Elicit anything helpful on deposition in

case he is not called at trial

Fact Witnesses (cont’d)

Technology in Cross Examination

• Not all Courts or attorneys are in the

same technology place

• More courts are embracing technology
• Use of technology improves trial

presentation

• Increases efficiency handling evidence
• Improves the effectiveness of cross

examination

42

Using Technology in Cross Examination

William E. Hammel

Constangy Brooks & Smith whammel@constangy.com

Technology Should Be Used in Every Case

44  Helps persuade the jury  Much of your evidence is electronic  You cannot afford not to!

How Juries Learn and Retain

45  Jurors retain about 20 percent of evidence presented solely through oral testimony.  Judges and juries are better able to retain information when it is presented with visual support from pictures, diagrams, charts, or graphics… can be up to 80%.  Jurors need to be able to remember information days later when deliberating, so you need to make it stick.

Help the Jury Visualize

46

vs.

 Show, Don’t Tell: Two-thirds of the population are visual learners, including your jurors and judge.  Use visual aids. A picture is worth a thousand words, seeing is believing. etc.

“Don't say the old lady screamed. Bring her on and let her scream.”

• Mark Twain

Using Technology in Cross Examination

47



Other witnesses’ testimony, timelines, relationship charts, reenactments, and computer simulations.



Aim to minimize the obtrusiveness of any technology – it should augment your cross examination, not replace it.



Use to highlight your cross points or remind the jury of your theme.

Timelines, Relationship Charts, & Decision Trees

48  Timelines: clear, simple, and large timeline of events. Probably the most effective visual aid.

• Allows the jury to see your “correct” chronology of events
• Corral witnesses by showing what they knew and when they knew it

 Relationship Charts: shows the connections between witnesses and facts.

• Jurors typically do not remember relationships between witnesses
• Relationships infer motive

 Decision Trees: flowchart of the decisionmaking process.

• Shows how, why, and when decisions were made
• Can add alternative decisions and their effects

Use to Show Contrast

49



Jurors inherently compare and contrast.



Contrast influences perception of the facts.



Best way to present contrast is through charts.

Use for Emphasis

50



Keep the jury’s focus where you want it to be.



Trial presentation technology also provides an effective tool for comparing evidence.

Use to Summarize

51



Summaries help jurors organize, understand, and remember critical information.



Another chance to repeat evidence to the jury.



Many times, allows you to create evidence that the jury can use in deliberations.

Use to Authenticate ESI



In depositions, address authentication in your outline because it may be your only chance to prove up and anti-hearsay ESI.



Have the witness log into various sites during the deposition and testify to username and contents.



Authenticate text messages, picture mail, GPS information, etc.

52

Use to Impeach

53



Video depositions should be encoded and synchronized with the transcript text.



Allows you to index and play selected portions of a videotaped deposition with minimal interruption.



Jurors can see how sincere the witness was as he/she made earlier statements.

Never Forget Your Audience



The spotlight is not on you, so don’t steal the show.



Normal rules of cross examination apply.

• be clear, be brief, and then stop

54



Minimize the obtrusiveness of any technology used.



Remember, there is no point in using technology unless it furthers the ultimate goal of teaching the jury your client’s

• story. Don’t let your message get lost!



Keep it simple. Make it easy for the jury.

Social Media in Cross Examination



Undermine witnesses’ credibility



Concession-based cross examination



Impeach!

55

It’s Where the Evidence Is

56

Potential Social Media Evidence



Can obtain information detailing where the user lives, works, socializes, went to school, and grew up.



Also can obtain pictures, friend lists, logs of conversations with other users, and references to other evidence. 57



May also include “check ins,” which are time-stamped entries

• f where a user was at a point in time (similar to GPS records).



Allows you to portray the witness as she is in real life – not the role she has been prepared to play on the witness stand. “Hey, aren’t you supposed to be on FMLA leave?”

Don’t Bring a Knife to a Gunfight

58



Cross examination is a battle of impressions, not logic.



Jurors have unrealistic expectations of the type of technology they expect to see in the courtroom.



You will be severely disadvantaged if you don’t use technology because the other side will likely do so.



Smaller cases can be tried with an iPad or other tablet computer and a projector.

Trial Presentation Options for Every Budget

59

Premium Budget

Preparation is Paramount



Know your limits. In some cases, you may find it best to use courtroom consulting companies or graphic designers to help prepare exhibits and visual aids.



Scout the courtroom or deposition room beforehand. Not all courts or attorneys have the same capabilities. You may need to provide equipment.



Have your own backups – both electronic and paper.

60

Technology Tips

Prepare: use charts, bullet point lists, timelines, relationship charts, and decision trees. Don’t Overuse: choose exhibits and sound bites carefully. Too many video clips dilute effectiveness. Simplify: make your visuals as simple as possible Backups: have an Elmo projector and paper exhibits as backup.

61

Psychology in Cross Examination

62

Pay Attention to How the Witness Answers

63



Witnesses typically do not willingly help the adverse attorney or hurt their case.



Watch the witness closely to determine the line of questioning that causes nervous responses, avoidance of eye contact, and changes in demeanor indicating a lack of confidence in the answers.

• body language and demeanor
• tone
• word choice



Know your material. It can be easy to miss the fact that a witness has given you a good answer because you are busy thinking about the next question.

How You Come Across Matters Too

64



In trial, your demeanor and tone are also important. Show confidence and avoid podiums.



Juries expect cross examination to be somewhat confrontational.



Juries identify with the witness more than the attorney. No one likes a bully.



Show the jury that the witness’ admissions are important. Don’t keep your head down taking notes.

Sequencing

65



Chapter Method: organizing by chapters is usually most persuasive

• group questions by cross examination goals
• each goal should prove a fact, introduce a fact, discredit a fact, or adversely

impact the jury’s perception of the witness’s credibility



Each chapter should have a theme and its own conclusion which supports your case

• group questions by cross examination goals
• focus on facts beyond change



Facilitates time jumping

Paint a Picture by Telling a Story

66



Make a mental image of what you are seeking to describe. Present that mental image through leading questions.



Use present tense and descriptive words appropriate for the context.

Framing Your Questions

67



One fact per question.



Make your statement and get to the yes or no answer quickly.



Don’t use “isn’t it true…” Instead, testify:

• it was dark
• it was raining



Be ready to impeach.

Time Jumping

68



The witness was likely prepared to testify chronologically. Cuts them off from “safe zone” testimony.



People will admit to mitigating damages more easily before you ask liability questions.



Do not let a witness change sequence.

• always be polite
• “We will get to that in a moment, but right now I would like to ask you about…”



Develop risky areas of testimony only after establishing control of the witness through your safe chapters. Still begin and end strong.

Use Personal Space

69



Invading personal and intimate zones tend to cause stress. When you approach a witness, stand close while the witness reviews a document.



This stress can lead to the witness showing signs of discomfort which, in turn, could affect the jury’s impressions of the witness’s creditability.



Be subtle – no one likes a bully.

Test the Limits of Testimony at Deposition

70



At deposition, when a witness will not agree with anything you want her to confirm, take it to the extreme and work back to the specifics.

• Are you testifying that you never left work before your shift ended?
• Are you saying that your supervisor had no redeeming qualities whatsoever?



Clean up hedge words like “usually” or “mostly.”

Bolster Your Witnesses at Deposition

71



Don’t miss an opportunity to ask the adverse witness how she feels about your key witnesses at deposition.



Have corporate representatives and key witnesses present for cross examination.

• did they seem sincere at the time?
• were they professional?



Grade the Paper Questions: address what the witness thinks your witnesses could have done better and worse.

Piggybacking

72



Rest one question on the back of the previous answer using the witness’s

• wn words.



More difficult for the witness to take issue with your question because it would involve disagreeing with their prior testimony.



Prevents a witness from escaping what you are trying to establish.

Don’t Ask the Ultimate Question

73



After having the witness agree with you again and again, you may be tempted to ask the ultimate question.



One question too many trap… don’t do it! You argue the ultimate point in your closing.



Better to persuade the jury with their own conclusions than it is to persuade them with yours.

Begin and End Strong

74



How you begin sets the tone for how the jury will receive your cross. First impressions matter!



Primacy & Recency: We tend to accept what we hear first as being true and remember longest what we hear last. Begin and end with your main cross points



Open with strong points and close with strong points in cross-examination. Leave the boring, but necessary, issues for the middle of the cross.