Trial Theory

“Nobody believes a liar…even when he is telling the truth!”  My son is four years old now, soon to be five.  He’s gotten into the habit of coming in while I’m working on the computer and telling me “daddy, dinner’s ready!”  After a few times of walking into the kitchen to see dinner still cooking on the stove, I’m thinking I need some independent confirmation before I believe that dinner is ready.  I ask him, “are you telling the truth?” and of course he responds “yes!”

Last night I was reading The Boy Who Cried Wolf to him before bed, and it occurred to me that this story contains a most basic explanation of how to demonstrate the un-truthfulness of a witness’ testimony.  Not that this is always the goal of cross-examination, but when a witness is not being truthful about something critical to the case it becomes an important part of the cross-examination.

How do you prove that a witness is lying?  In some cases it can be proven by extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement.  Or we can show bias or motive – demonstrate to the jury the witness’ reason for lying.  If the witness has not been consistent in his or her statements we can impeach the witness with prior inconsistent statements – video, audio, witness interviews pre-trial, or statements they have made to other people.

But if these tools are not available, or in addition to these tools, can we show that the witness is simply someone who lies – even if we are unable to prove the witness is lying about the most important fact, what if we are able to show that the witness is lying about other facts?  If the witness has lied about other facts, has given inconsistent statements on other subjects, and can be impeached on other statements that he has made to the jury, why should the jury believe anything that the witness says?

The Old Man’s advice to the young shepherd boy, as he laments the loss of his sheep to the wolf, and wonders why the village-folk did not come to help him, is as valuable a lesson for cross-examination as it is for my son: “Nobody believes a liar…even when he is telling the truth!”  If you are not a consistently honest person, how can we know that you are telling the truth?

“Invent, disrupt, inspire” – Paul Luvera comments on this motto of a research company:

One speaker ran a research company that was constantly looking for new and imaginative ideas. The motto of the company was “invent, disrupt, inspire.” When I heard that I thought of how that applies to trial lawyers. They must continually force themselves out of the rut of doing things the same old way and stay current with developments in communication. They need to invent new ways of doing things and thinking about what they are doing. They need to disrupt the old ways just because they are comfortable and they need to be inspired to search for new and better ways of representing their clients.

It is difficult to get out of our comfort zone – once we learn ways of doing things, it is easy to continue doing them the same way but we stagnate if we are not constantly striving to improve.  When I first graduated from law school, I bought Cross Examination Science and Techniques by Pozner and Dodd – I read it, I studied it, I practiced with it, and I used it in every trial beginning with my first.  I learned the basics of effective cross examination using the chapter and page method – one fact per question, each question designed to establish one point that needs to be made (a chapter), and one chapter per page.  Following every important question is a cross-reference to the location in a binder of impeachment material with which I can prove the fact if the witness does not agree.  I still recommend this book to every attorney, and you cannot read it too soon in your career.

More recently, I threw much of what I learned from Pozner and Dodd out of the window as I began practicing telling my client’s story in every cross examination.  Even more recently, as I become more comfortable with story-telling in cross examination and every other aspect of trial, I am working on incorporating the new with the old.  There is a lifetime of fine-tuning and discovery of new methods of telling our client’s story through cross examination ahead.  We have to learn what the witness’ story is, learn how the witness’ story relates to our client’s story, and then find the best way to show this to our jury.

A wonderful method of cross examination that was shared with me recently is to imagine that you are reading from a children’s book, each question one short line from the book, and to give that children’s book a title which captures the story that you are sharing with the jury through this witness.  As always, do not argue with the witness or get off track by non-responsive answers – disregard their answers when necessary, do not get sidetracked, and do not lose control of the cross.

This “story method” of cross examination is wonderfully simple and effective, but I recognize that some witnesses are going to have significantly longer cross examinations.  There are times when you cannot ignore the witness’ answer and you must impeach them.  In these situations, this “story method” then dovetails with Pozner and Dodd’s chapter and page method – each chapter in the cross examination can become its own children’s book with its own title, one chapter per page, but remain focused not on “scoring” a series of points, but rather on telling your client’s story through this witness.  There will be technical chapters that are necessary to prove elements of the defense in a criminal case or elements of the cause of action in a civil case, and there is no better method of impeachment than Pozner and Dodd’s sourcing method, but at the same time each “chapter” in the cross examination becomes a literal chapter in your client’s story.

Invent, disrupt, inspire – we have to keep trying new and different things in our preparation and in trial, in our law practice, and in our lives.  We need to challenge ourselves, our staff, and each other to continually grow and improve on what we already know.

Last week I was working on preparing a client (lets call her “Witness”) for cross-examination, and I explained how police are trained to testify.  First, they take classes on how to testify effectively and connect with jurors, and second, they get plenty of practice over time.

With the first run at cross examination, an attorney from our office immediately got Witness into a rhythm – rapid fire questions, Witness fell into a rhythm of immediately answering yes, no, yes, yes, and the attorney was the center of attention in record time.  Witness was looking at the attorney as the attorney asked questions in rapid succession, and I felt my attention inescapably drawn from Witness to attorney.

We had a mock jury set up on one side of the room (six faces on the wall), and I explained that, even on cross examination, Witness had to talk to the jurors and not to the cross-examining attorney.  We try again, but this time as the attorney finishes the question I interrupt with a loud “stop! pick a juror,” forcing Witness to stop and think before answering, to find a juror to give the answer to, and then to take a moment to explain the answer or to testify for a moment about the subject the attorney had asked her about.  Rinse and repeat.

When Witness is looking at the jury, the jury is looking at her.  If Witness is looking at the cross-examiner, the jury is looking at the cross-examiner – Witness’ non-verbal language is telling the jurors that the attorney is the most important person in the room, and it is directing their attention to the cross examiner.  With some practice, Witness got it and at trial Monday and Tuesday you could see the improvement.

A police officer testified at the trial as well, and I received  a healthy dose of my own medicine when he not only stopped, picked a juror, but then refused to answer any question I asked and talked about whatever he felt like instead.  Like I said, they are trained to testify – not necessarily to testify truthfully, but to engage a jury and, in this officer’s case, to avoid every question asked.

It’s important to remember that our clients don’t have the training and experience of a professional witness like a police officer or an expert witness, and part of preparing for trial is to prepare our client and other witnesses to testify (truthfully and without avoiding answers), to engage the most important people in the room (the jurors), and to prepare the client or other witnesses for cross examination.

I often wonder if my in work to become a better trial lawyer,, I don’t overdo the psychodrama aspect of it. I probably should let each of you know that i firmly believe that by working on the horse and not just buying a pretty saddle,, the horse has the best chance of winning the race.

It is nice to have a pretty saddle, but if that’s all you have along with a 10 dollar nag,, when you race a thoroughbred,, you end up in last place and the thoroughbred can simply trot to the finish line way ahead of your pretty saddled horse on the nag.

So, here I am traveling across the country learning psychodrama, and other self-improvement techniques and I begin to wonder if the internal work I’m doing at a breakneck speed is getting any results for myself or most importantly,, my clients.

I guess somewhere in this post,, I should let you readers know that this has been a very difficult year for me,, I went through a major divorce, (a gift), I was homeless,, (another tremendous gift),, I was near death in the ICU and many other numerous experiences that shaped the lessons I am re-learning properly in life.

It is very interesting to me to see the filters in my life that affect my decision-making processes and interactions with those who determine the fate of my clients,, and the ability to see if in fact I get paid. I am seeing the reality of what is actually in front of each of us as we make decisions. I feel an emotional component,, an analytical component and several filters that most of us aren’t even aware,, the filters of the parental units parenting skills,, the filters of the need to make enough money to survive,, the filters of the coworkers,, the filters of the family,, all in the direct line of sight of what we may think we actually see.

It is my strongest feeling that information is constantly being filtered by those factors we unconsciously are not aware and also by those factors of which we are aware.

So in the end,, one can only truly listen, see, feel, taste, or touch the real object only when one removes those filters we all have imbedded in us.

For instance,, most experts are not to be argued with on the technical points of their area of expertise,, you’ll always lose,, one however can be quite successful if one sees what occupation the expert is,, (i.e.,, healer, instead of physician) and begins to utilize the public figure of the witness as a beginning for him or her on cross-examination.

One can then rapidly pin the expert into making sure that the jury knows that he or she is an expert healer,, and then ask about acts consistent or inconsistent with the art of healing, vs. being a paid whore expert.

Continuing along those lines the expert healer can then be shown what his or her perception is filtered by rather than just the obvious line of connection between the patient and the healer. I’m simply saying,, the expert can then be shown that there really are a number of ideas, (filters, if you will) between the expert and the patient. I add filters such as medical school professors,, parental units, country club dues, yacht fees, partners, insurance company money, spouses, children, tuition, obligations,, other patients, etc.,,, until it is impossible for the expert to ever see the patient to heal them.

All I’m saying is this,, perception is different when reality is added into the picture.

Does psychodrama help me in trial? Absolutely yes,, for I then see the truth and all its filters and easily see how the person can be confused and mistaken by the report prepared. I also use the document to show what is not there,, versus what the document says.

I can only say the benefits of psychodrama carry onto making me a better horse than just one with a pretty saddle. May each of you experience the therapy you seek and see the truth you so desperately desire. Peace.