How to Win Cases – Part II

Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.

What makes trial exciting is the heat. Cross-examination is the crucible which, when used correctly, will burn away the mistakes and the shadings and the lies, and leave the truth.

David Pomerantz, in the article preceding, treats the subject of expert cross-examination with depth and precision. As is the nature of this series, let’s divide out a single point. In this piece we will look at how to cross-examine a “target witness” (usually an expert) through an “innocent” witness.

Of the five constructs on which this series is premised (Credibility, Integrity,  Education, Control, and Creativity) control applies most directly to cross-examination. We have all heard, and believe to our bones, that control in cross is manifested by the closed-end question. That is absolutely true. (Of course there are times when you have been so effective that you invite an expansive response, either because you know the answer helps rather than hurts, or because you have progressed to a point where the answer makes no difference.)

That concept of control applies, as do almost all strategies of cross-examination, when directly confronting a witness. Isn’t it true doctor…? Isn’t it true officer…? Isn’t it true sir…? This is the form that we have all used.

We want to look at control from a different…and maybe more creative…point of view. Think now about the idea of using one witness to cross-examine another. What if you could control your “target” witness through the testimony of an “innocent”? Here is how you would do it.

Begin with the premise that one method of effective cross is to move from the general to the specific. Again, we are working with an expert or professional witness. Your strategy is to have them agree to general relevant principles first and then move to the specifics of your case. You apply the general constructs to what happened or what they did. Think in terms of the way a shark hunts, circling its prey more closely with each pass, bumping occasionally to check for reaction. You are circling by means of generally accepted ideas. Your bump as cross-examiner is the mildly pointed questions early on to gauge the reaction of the witness to confrontation. The kill occurs if you can show the disparity between the general principles and the specifics of the witness’s testimony.

I will use a criminal case as an example. Generally there will be a detective sitting at the trial table for the entire proceeding. It is his case and he is very experienced. It is unlikely that you will be able to “break” him. It is far more likely that he will break you. He generally testifies last to clean up.

But what if your general questions are asked of a preliminary “innocent” witness? A uniformed policeman is a good example. Early in the case, a uniformed officer will testify. Usually the first on any scene, she provides background information and any evidence which she might have gathered. Under the standard model there will be few if any questions.

However, under this model you want to use the “innocent” to lay the foundation of general principles that will underlie your point. Let’s assume you have a case where no fingerprints were taken. The “innocent” will gladly tell you about how easily prints are taken and how infallible they are and how they solve cases. The target then sits and squirms knowing that eventually he will have to answer for why he did not do what that nice young woman in uniform told the jury was appropriate.

You have laid the foundation of general principles upon which you will cross-examine the target without yet having asked him a question. He has had no ability to see you coming and to shade his response.

Please don’t limit this technique to criminal cases. Physicians will opine on general principles as well. Use your opponent’s expert to acknowledge literature upon which your expert relies. Emergency room doctors make excellent “innocents.”

The point of this piece: 1) determine first what your issues are, and then 2) look to who might give you the evidence to support your position. Look outside the obvious. Be creative while strengthening the ability to maintain control.

Law and Fact
The Journal of the Cuyahoga County Bar Association
July 2003

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