So You've Got to Draft a Cross- Examination for Trial—Now What?

LITIGATION SKILLS Sitting in the Hot Seat So You’ve Got to Draft a Cross-

By Brett A. Tarver Examination for Trial—Now What?

The associate supporting While there are many exciting and entertaining moments a cross can make or that lawyers experience on their feet during trials, most break a successful cross- trial lawyers will tell you that the most exhilarating and examination, through fun moments occur during cross- examination. There are multiple components that have to come Where It All Truly Starts: drafting the outline, to together for a cross-examination to be suc- The Deposition cessful. This is particularly true when the The substance and format of a witness’s being ready with exhibits witness being cross-examined is a pol- deposition testimony is the bedrock foun- ished expert who has testified multiple dation of a successful cross-examination. It and prior testimony times and is ready for anything that the is often advised that a lawyer should never lawyer might try during the examination. ask a question during cross-examination for impeachment For the lawyer delivering the cross to move that he or she does not already know the smoothly through the presentation, it is answer to, and this advice is generally during the cross. highly important for the lawyer support- appropriate. And the only way to know ing the cross to be just as prepared. For those answers before trial is by taking most associates, their first time in trial will an effective and thorough deposition. For require them to be that supporting law- many young lawyers, they will begin cut- yer. Known as the “hot seat,” the associate ting their teeth on examination of wit- supporting the cross can make or break nesses during the deposition process. What a successful cross-examination, through some may not realize is that as a trial law- drafting the outline, to being ready with yer, you should be thinking about trial and exhibits and prior testimony for impeach- how you plan to use the deposition at trial ment during the cross itself. This article before a deposition even begins. A well- works through the creation and delivery of thought-out and executed deposition can a successful cross- examination from the become a springboard to a piercing cross- viewpoint of the supporting associate. examination while a lazy and run-of-the-

■ Brett A. Tarver is an associate at Jones Day in the Atlanta, Georgia, office. Since joining Jones Day in mid-2016, Ms. Tarver has been a member of 10 trial teams and is regarded as an up-and-coming trial lawyer in the defense of products. She is a Steering Committee member of the DRI Young Lawyers Committee and an active member of the DRI Drug and Medical Device and Product Liability Committees. The views expressed in this article do not necessarily reflect those of the law firm with which the author is associated.

56 ■ For The Defense ■ March 2019 mill discovery deposition can leave the what was wrong with me and what could Finally, it is important during a depo- trial lawyer without any punches to throw. help. So it’s hard for me to remember sition to “close out” all topics with a wit- So how can associates ensure that the dep- exactly when I talked to him and when ness during the deposition. The purpose osition testimony that their trial lawyers he talked to me about stuff. But, you of this is to ensure that a witness does not will need for their cross-examinations know, I do think I remember the second have any room in his or her testimony to is effective? time we talked about the medication, give new answers at trial. For a fact wit- First, it is vital to determine the key he mentioned some of the things that I ness, such as the one in the example above, admissions that need to be obtained from should look out for when I went on the questions such as these two will help final- the witness. Each witness who testifies at medication. Yeah, I do think I remember ize the testimony: “Have we now discussed trial provides a different piece of evidence him telling me in May of 2009 that there that a plaintiff needs to prove his or her could be some side effects. But he said claims. As a defense lawyer, it is impor- that they weren’t a big deal and unlikely tant to identify before a deposition which to happen so I shouldn’t stress too much It is vital to determine pieces of proof a plaintiff will seek to use about them. That’s the only conversation a particular witness for and to identify I remember having with him about the the key admissions that admissions that are needed from the wit- side effects. ness to undermine the plaintiff’s evidence. The answer here contains many pieces of need to be obtained These can range from admissions that the information. The deposing lawyer should witness does not recall key facts, to state- then take this answer and break it down from the witness. ments demonstrating the witness’s lack of into bite-sized, leading questions, which credibility, to agreement in opinion from will result in a clean transcript. These bite- an expert on other risk factors an injured sized admissions will be perfectly teed up every conversation that you remember hav- party may have had that played a role in to be put into a cross- examination outline, ing with your doctor about the side effects the injury. By determining what these key leaving no wiggle room for the witness of the medication?,” or “Are there any other admissions are and structuring a deposi- when he or she is cross- examined at trial. conversations you recall having with your tion around obtaining these key admis- Here is an example of breaking down this doctor about the side effects of the medi- sions, associates can be sure that they have long-winded type of testimony: cation?” For an expert witness, questions the deposition testimony that they will Lawyer: Thank you. I’d like to follow up such as the following will protect against need to bring out at trial. on some of what you just said. You recall the expert witness being able to claim that Second, the lawyer taking a deposition having many conversations with your the opinion that pops up for the first time must work during the deposition to cre- doctor over six months, right? during the trial is not new or undisclosed: ate a clean and crisp transcript. This is Deponent: Yes, that’s what I remember. “Have we now talked about all of the opin- particularly something that young law- Lawyer: You cannot remember what was ions you have in this case?,” or “Have we yers may not think about during a deposi- said in all of those conversations? now talked about all of the opinions you tion because they may be focused solely on Deponent: Yeah, like I said, we talked a intend to testify on at trial?” getting information from a witness. But, bunch of times and I don’t remember all as most trial lawyers know, a messy tran- of the discussions. The Outline: More than script results in headache at trial, especially Lawyer: But you do remember that Just the Deposition during cross-examination. Without a clean you had two conversations about the A solid outline is the next layer of a suc- transcript, impeachment of a witness with medication? cessful cross. An outline should flow in his or her prior statement will be, at best, Deponent: Yes, I remember two conver- such a way as to draw a jury’s attention difficult for the jury to follow, and at worst, sations. to key admissions that a lawyer wants to it will be impossible to execute. Say that Lawyer: During the second conversation highlight, while also burying discussion a deposing lawyer needs a key admission you had about the medication, your doc- that must be covered for closing argument from a deponent that the deponent’s phy- tor talked to you about the potential side but might not be the most helpful to the sician discussed the potential side effects effects, right? defense. Attorneys should not be wedded of a medication with the deponent. Here Deponent: Yes, he went over side effects. to the organization, flow, or language used is an example of an unclear, vague answer Lawyer: And that conversation hap- by the lawyer who took the deposition. In from a witness, containing multiple layers pened in May of 2009? most depositions, it makes chronological of potentially important information: Deponent: I remember it in May of sense to begin with background informa- Lawyer: Did your doctor talk to you 2009, yeah. tion about a witness, including whether he about the potential side effects of the These shorter, leading questions will or she has been deposed or involved in lit- new medication? lock the witness into his or her testimony igation before, and then to move into the Deponent: Well, I had a lot of conver- and be easy to use during impeachment of substance of the issues of the case, care- sations with my doctor over about six the witness if he or she attempts to change fully following each rabbit trail on a sub- months while he was trying to figure out his or her testimony during a trial. ject before moving to the next. However,

For The Defense ■ March 2019 ■ 57 LITIGATION SKILLS at trial, a jury pays the closest attention one fact statements. It is not necessary numbers and page numbers within an during the beginning and the end of a for each question to end with “correct?” outline will help draw the questioner’s cross-examination. or “right?,” which can become repetitive eye to these items, flagging that the use of As the cross-examination outline is in an annoying way when delivered. Fur- an exhibit or demonstrative is coming up drafted, the associate putting the outline ther, the best leading questions are those during the cross. Color-coding will also together should talk frequently with the that directly mirror the witness’s answer help the supporting associate follow the lawyer who plans to deliver the cross about during the deposition, not the lawyer’s cross and be prepared to pull the exhibit which topics he or she wants to start with question. Consider, for example, the fol- or direct the graphics team member to and which topic he or she wants to use lowing exchange: pull up the desired demonstrative. Under Lawyer: When did you first notice any each question of the cross outline, the symptoms from the medication? prior testimony that will be used in case Deponent: I first noticed a rash some- of impeachment should be included and The difficulty and time in April of 2011, I think. clearly identified by case name, volume For the cross-examination outline, the number, and date of the testimony. complexity of preparing question should read, “You first noticed a The difficulty and complexity of prepar- rash in April of 2011?” If the witness tries ing exhibits and documents before a cross- exhibits and documents to change his or her answer, the above examination will depend on the type of exchange will be used to impeach the wit- witness. For most fact witnesses, there will before a cross-examination ness, and the jury should pick up on the not be too many exhibits or transcripts of fact that the question asked by the cross- prior testimony that will be needed dur- will depend on the type examiner exactly matches the witness’s ing the cross. For many expert witnesses, prior testimony. however, there may be boxes of exhibits of witness. For most fact Young lawyers should also look for cre- and transcripts to contend with. A young ative ways to make the points that the lawyer needs to work with the paralegals witnesses, there will not defense needs during a cross- examination. and other trial staff members to make sure Depending on the jurisdiction and how that each exhibit that will be used during be too many exhibits the trial court judge interprets the rules the examination is in the boxes, that it is of evidence, there are many different ave- clearly labeled, and that there are multiple or transcripts of prior nues that a lawyer can use to achieve key copies on hand for the lawyer conducting admissions that were not or could not be the cross to provide to opposing counsel, testimony that will be elicited during the deposition of a fact or the witness, and the court. The lawyer de- expert witness. For example, if allowed, livering the cross may already have a pref- needed during the cross. sections of the cross-examination can be erence about how exhibits are prepared, but built around information from an arti- it is usually most helpful to pre-highlight For many expert witnesses, cle or other documents relied on by the whichever portions of the document will defense experts by confronting the plain- be read to the witness or shown to the jury. however, there may be tiff’s expert with the article and drawing This will help draw the examiner’s eye di- out agreement pertaining to the reliability rectly to the part of a document to be used. boxes of exhibits and of the article and the article’s statements. If a document has multiple pages, putting If this is a chosen strategy, the young law- tabs on the pages where the highlighted text transcripts to contend with. yer must be sure to read the entire article occurs will also lessen page-flipping and or document to discover if there are any searching by the examiner during the cross. statements that would not be helpful to the At the end of the day, it is the support- as the “walk off” section. These sections defense and to try and anticipate how the ing lawyer’s job to make sure that each of should be drafted early during trial prep- plaintiff’s counsel will try to use the docu- the exhibits and transcripts of prior testi- aration so that both lawyers have time to ment during re-direct. Thinking ahead in mony that may be needed during the cross- review and brainstorm on the best ways to this way will help keep the plaintiff’s attor- examination are included in the boxes that begin and end the cross. ney from using a document admitted by come to the courtroom the day of the cross. If the right work has been done in depos- the defense against the defense. Checking the boxes against the outline the ing of the witness, drafting the questions night before the cross will help ensure that in the outline will be quite straightfor- The Documents: Identify and the supporting lawyer does not come up ward. However, the drafter of the out- Organize Ahead of Time empty-handed when the examiner asks for line should not simply copy and paste the In addition to questions, an outline should a document or transcript mid- questioning questions from the deposition into the out- also contain clear references to the exhib- and that all of the evidence that the defense line. Leading questions are best for cross- its that should and will be used during the needs to use or admit makes its way into examination and should consist of short, cross-examination. Color-coding exhibit the cross.

58 ■ For The Defense ■ March 2019 Time for the Hot Seat: jury understands that lawyers are humans, may seem that multiple steps are required, In the Courtroom too, and occasional moments of pause these tips will help ensure that all a jury Now that the outline is finalized and the while a document or transcript is located sees is a smooth and seamless presen- boxes of exhibits and transcripts have will not make or break the case. tation, during which exhibits are ready made it into the courtroom, the support- when the examiner needs them and a wit- ing associate’s job is not finished. This is Conclusion ness is quickly impeached with prior tes- when the term “hot seat” truly is defined. With a clean and crisp deposition, a punchy timony whenever he or she tries to change During the direct examination of the wit- outline, and well- organized boxes of exhib- the story. This will keep a jury focused on ness, the supporting lawyer should help its and transcripts, the associate in the hot the entire point of the examination: the key follow along with the witness’s answers, seat should have everything that he or she admissions that a defense lawyer needs to noting any departures from the testimony needs to help support the delivery of an undermine a plaintiff’s case and argue for that the witness has given previously and effective cross- examination. Although it a defense verdict. identifying areas in the cross-examination where this testimony can be examined. The supporting associate should know the facts of the record, and particularly the witness’s testimony, cold. The sup- porting associate should be able to notify the examiner when objectionable ques- Register now at dri.org! tions pop up or when objectionable tes- timony is being given—such as when an expert starts to give new and undis- closed opinions. Listening, responding, and objecting to inappropriate questions Construction Law or testimony during a direct examination is a team sport and both lawyers should Increase Your Odds of Holding a Winning Hand work together. Once the cross-examination begins, the supporting lawyer should be seated LITIGATION SKILLS WORKSHOP closely behind the lawyer delivering the NEW cross- examination. The boxes containing Examination of the Expert at Trial the exhibits and transcripts should also be close at hand. The supporting lawyer should have a copy of the outline that mir- The construction rors the one used by the lawyer conduct- law industry is ing the cross. As the cross progresses, the changing—don’t supporting lawyer will follow along in the get left behind! outline. It will help if the supporting law- yer checks two to three questions ahead as the cross progresses to keep an eye out for upcoming exhibits that need to be pulled April 10–12, 2019 from the box. However, the supporting lawyer still needs to pay attention to the Caesars Palace question being asked and how a witness is answering. If a witness is straying far from Las Vegas, NV the impeachment contained in the outline, the supporting lawyer should move to find the pertinent transcript of prior sworn tes- timony in case impeachment is necessary. The supporting lawyer is referred to as “sitting in the hot seat” because all these actions occur simultaneously. But while many young lawyers will feel the pres- sure of wanting to have each exhibit per- fectly in hand when the examiner needs it, young lawyers should remember that a

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