Thursday, March 3, 2011

Cross-Examination Handbook

The other side puts a witness on the stand, and the jury the hears a selection of facts and impressions—generally the selection that the other side wants it to hear. Now you get the wonderful opportunity to cross-examine the witness. At the end of your cross, you'd like the other side's case to seem weaker and your own to seem stronger, of course, but how do you do that?

A new textbook offers guidance. Cross-Examination Handbook: Persuasion, Strategies and Techniques is by our neighbors Ronald H. Clark (Distinguished Practitioner in residence at Seattle U) and William S. Bailey (partner in Fury Bailey and part-time faculty at Seattle U and the UW) with George R. Dekle (professor at University of Florida).

A book that covers all of trial advocacy can only devote a chapter or two to cross-examination, but this one is all cross, all the time. (Bailey argues for a whole course on cross in this post.) The authors break cross-examination down into understandable pieces. The text is very accessible, even conversational in places.

How do you plan a cross? It might be obvious, but I hadn't really thought about starting with the closing argument: if I want to say ___ in closing, what do I need to get the witness to say on cross now?

The book discusses the difference between cross-examination when you are trying to get the witness to concede facts that will bolster your case and cross when you are trying to discredit the witness. And it offers tips for doing each.

You might use many techniques with one witness -- seeking factual concessions AND impeaching testimony on one point, for instance -- and this book also gives some tips for structuring your cross overall.

There are chapter previews and review lists with text boxes to help you study and retain the information. Several chapters illustrate points with two fictitious cases—a civil wrongful death case and a criminal armed robbery case—so you can see how the different cross techniques can be used with one set of facts and even one witness.

The authors also draw examples from real-life cases. Some are from history (Abraham Lincoln's legendary almanac cross-examination (more on that on the authors' blog) and Clarence Darrow's cross of William Jennings Bryan in the Scopes trial. Others are much more recent. Seattle sports fans might appreciate the examples from the cases involving the Sonics' leaving Seattle and Huskies football coach Rick Neuheisel being fired for gambling (March Madness anyone?). (Maybe these bits of Seattle sports history are still painful to some fans.)

It's been many, many years since I took Evidence. I'd find it very helpful to go over the list of common objections to cross (pp. 344-45) and the summaries of the evidence and ethics rules they stem from (pp. 346-54), as well as the advice about tactics for meeting objections (pp. 354-55).

For classroom use—or even dedicated self-education—there are lots of exercises to try, with supporting documents on a CD-ROM that's included with the book.

I'm a librarian, not a trial lawyer. For a practitioner's perspective, see this warm review on MS Litigation Review and Commentary.

The book has a website and a companion blog (Cross-Examination Blog).

The law library's copy hasn't been cataloged yet—I've had it in my living room so I could write this post—but it will be soon. It will be included in this catalog record.

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