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.