Cross-Ups in Cross-Examination in Big Rig Trucking Jury Trials - (a/k/a Is Being Wise Better Than Being Smart?)
THE NATIONAL TRIAL LAWYERS TRIAL LAWYERS SUMMIT JANUARY 19-22, 2014 LOEWS MIAMI BEACH HOTEL MIAMI BEACH, FLORIDA
By: JOHN F. ROMANO ROMANO LAW GROUP EcoCentre, the Living Building 1005 Lake Avenue Lake Worth, Florida 33460 Mailing Address: Post Office Box 21349 West Palm Beach, Florida 33416-1349 Tel: (561) 533-6700 Fax: (561) 533-1285 Cell: (561) 346-5090 E-mail Address: [email protected] Internet Web Site: www.romanolawgroup.com
John F. Romano is a senior partner in the West Palm Beach, Florida, law firm of Romano Law Group, an "a./v." rated law firm. He is a former President of both the Academy of Florida Trial Lawyers and the Southern Trial Lawyers Association. Mr. Romano is a Fellow of the International Academy of Trial Lawyers. He was chosen to Florida Trend Magazine’s 2006 and 2007 “Legal Elite” naming Florida’s top one percent of lawyers in various specialty areas; named one of Florida’s 2006, 2007, 2008, 2009, 2010, 2011, 2012, and 2013 “Super Lawyers.” He has served as former Chairman of the National College of Advocacy and former Chairman of the AAJ Criminal Law Section. He is board certified by both the Florida Bar and the National Board of Trial Advocacy as a civil trial advocate. He has lectured and authored extensively on trial advocacy, litigation techniques, demon- strative evidence, and more. He has authored several books, including the textbook Strategic Use of Circumstantial Evidence; The Deposition Field Manual, published in 2002 by PESI Law Publications; and Opening Statement: Winning the Jury, published in 2004 by PESI Law Publications. Recently handled or currently pending cases include the following: orthopedic medical malpractice, plastic surgery medical malpractice, vehicular rollover product liability, trucking collision wrongful death, automobile neck injury-back injury, white collar criminal fraud, security negligent premises liability, business litigation fraud and breach of contract, business litigation attacking medical peer review system, toxic tort and pollution litigation. Additionally, Mr. Romano has received numerous awards, including recently the Al J. Cone Lifetime Achievement Award presented by the Florida Justice Association, the Tommy Malone Golden Eagle Award presented by the Southern Trial Lawyers Association, and the Annual Clarence Darrow Award presented by Mass Torts Made Perfect. He received the prestigious Perry Nichols Award presented by the Academy of Florida Trial Lawyers (FJA) (as its highest honor) in 1997. John Romano previously served as a Captain in the United States Marine Corps. John Romano lives in West Palm Beach, Florida, with his wife, Nancy. Nancy and John have four children and 11 grandchildren. John and Nancy are the co-founders of Vive Verde, Inc., the entity which owns and developed the “world’s first living office building” – an environmental wonderland office building in South Florida which is “green” and “LEED-certified” and “living” (water purification systems).
TABLE OF CONTENTS
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I. INTRODUCTION 1
II. THE CONTINUUM OF VOIR DIRE AND UNDERSTANDING ITS PURPOSE THROUGHOUT THE TRIAL - INCLUDING “CONDUCTING VOIR DIRE DURING CROSS-EXAMINATION OF WITNESSES” 1
III. CROSS-UPS IN CROSS-EXAMINATION – CROSS-EXAMINATION 101 3
IV. HOW TO MAKE EVERY DEPOSITION A WINNER 26
V. THE CONCEPT OF KNOWING, UNDERSTANDING, AND APPRECIATING THE FACT THAT WHEN YOU ARE IN A DEPOSITION YOU ARE “IN TRIAL”! 40
VI. CROSS-EXAMINATION OF EXPERT WITNESS 42
Cross-Ups in Cross Examination in Big Rig Trucking Jury Trials - (a/k/a Is Being Wise Better Than Being Smart?)
I. INTRODUCTION
It is January 2014 and we are in this most remarkable setting of Miami Beach, Florida. We are gathered together at this extraordinary resort facility to share litigation and advocacy tactics, techniques, methodologies, and strategies. One lawyer might exclaim: “Voir dire is the most important part of the trial,” while her colleague seated next to her states: “No - the direct examination of the plaintiff is the most important part of the trial.” One thing we all know is that cross-examination can often be a momentum changer or a direction changer in a trial. Another fact of life is that once the jury is sworn in and seated - the stage has been set and the foundation has been laid. From this point forward, it depends upon how and when and why we communicate to these individual jurors. You see - voir dire does not end once the jury is chosen, but rather voir dire is a “continuum” - continuing on through each and every stage of the trial. So, we must begin with these two essential components of trial tactics and strategy:
Component #1: Voir dire is a continuum.
Component #2: Cross-examination is the initial stage of summation.
II. THE CONTINUUM OF VOIR DIRE AND UNDERSTANDING ITS PURPOSE THROUGHOUT THE TRIAL - INCLUDING “CONDUCTING VOIR DIRE DURING CROSS-EXAMINATION OF WITNESSES”
A. “Old School” Voir Dire Purpose:
1. To obtain and solidify promises and commitments from members of the venire panel;
2. To establish rapport with jurors;
3. To “condition” jurors favorably to your position and anti-opponent’s position;
4. Eliminate “conventional wisdom” (bad or problematic jurors);
5. Conduct some level of an “opening statement” during voir dire.
B. 2013 Voir Dire Purpose:
1. It is essential that the jurors see and feel your sincerity (and the sincerity of your clients to the extent possible);
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2. Trustworthiness - bonding commences;
3. Establish rapport;
4. Completely rethink “conventional wisdom”;
5. Identify bad and problematic jurors and work to eliminate through challenges for cause.
C. Continuum of Voir Dire:
1. Sincerity - Jurors must see and feel this through every stage of the trial - especially during cross-examination.
2. Establishing and building a relationship of trustworthiness with the jurors - This must continue and build throughout every stage of the trial - especially during your cross-examination.
3. Establishing rapport - Likewise, this is done throughout every stage of the trial - especially during cross-examination. A flat and boring cross- examination and one which fails to make any points destroys rapport.
4. Rethinking conventional wisdom - Generally, conventional wisdom is wrong. It is laden with traps and pitfalls and failures. There is usually little which is wise about conventional wisdom. The jurors must learn as you “continue voir dire” during the trial and during cross-examination that you, and your theme, and your theory, and your image of the case has been well thought-out, and well prepared, and is legitimate, and straightforward, and smacks of common sense.
5. Identifying bad and problematic jurors and working to eliminate them for cause - Clearly, you will no longer be able to eliminate them as jurors during the trial, but through the “continuum of voir dire,” you can either minimize their persuasiveness with other jurors or capture them as favorable jurors by knowing how to communicate with them and by showing them that the reality and truth of your case and your clients fit into their experiential and philosophical background.
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III. CROSS-UPS IN CROSS-EXAMINATION – CROSS-EXAMINATION 101
It is generally considered that “The Ten Commandments of Cross-Examination” were developed by Professor Irving Younger in his book Trial Techniques published in 1978 by the National Practice Institute. Since Professor Younger first came down from the mountain with his commandments, there has been a continuing flow of debate over these rules. Academicians generally tend to follow and accept the commandments while trial lawyers in general view them - or at least some of them - with a great deal of skepticism and, in some instances, disbelief! We will list the Ten Commandments of Cross-Examination below and then give a brief follow-up statement. During the actual live presentation or lecture, we will then discuss a number of real world situations and how these commandments can often be misleading, misunderstood and “trap setting.”
A. THE TEN COMMANDMENTS OF CROSS-EXAMINATION
1. Be brief.
This commandment is misleading. Brevity in one case may be a 15-minute cross- examination with a given witness, while in another situation, brevity may mean four hours of cross. Don’t be brief in order to remain “obedient” to the commandment. In some instances, a highly effective cross-examination may well take several hours or perhaps even a day or more.
2. Short questions, plain words.
Generally, this is a good commandment to follow.
3. Never ask anything but a leading question.
Nonsense! Nonsense! Nonsense! Leading questions are generally preferred with certain witnesses such as experts or adverse parties. However, some of the most effective cross- examination can be conducted without leading questions and yes - even by asking a “why” or a “how” question during cross.
4. Ask questions to which you already know the answers.
The rule or commandment should be restated as follows: “Ask questions only when you know the answers or when you are confident you can handle the answers whatever they may be.” In real trials in the real world, lawyers who are competent and skilled generally ask many questions where they don’t know the precise or exact answer. Otherwise, it would be almost impossible to cross-examine. The advocate should think through and brainstorm on all proposed cross- examination well in advance and consider all of the possibilities and probabilities, and determine how to handle certain answers.
5. Listen to the answer.
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This is a good commandment.
6. Do not quarrel with the witness.
Generally, a good piece of advice.
7. Do not permit a witness on cross-examination to simply repeat what the witness said on direct examination.
Again, generally, a good piece of advice. However, there are often circumstances where you will want the witness to repeat a statement made on direct examination in order for you to be able to make a point on cross-examination. This may be a situation involving impeachment, inconsistency, etc.
8. Never permit the witness to explain anything.
[This commandment is also further explained by Professor Younger in speeches and publications as prohibiting witness explanations, why and how questions, and insisting that witnesses only be permitted to give “yes” or “no” answers. Here, Professor Younger teaches us to have total and absolute control over the witness.]
You should consider this “commandment” not as a rule but rather as a principle. You see, rules and commandments are not to ever be broken, while “principles” or “guidelines” are used to aid us and assist us, although sometimes we must vary from them. Although witness “explanations” on cross are often problematic, sometimes they can be the key to victory in your case.
9. Avoid one question too many.
You should generally be satisfied with a “good result” on cross-examination. Often the advocate searches for the near “perfect result” and then is stricken by catastrophe.
10. Save it for summation.
Sometimes it is preferable to leave the jury “...in a state of unsatisfied curiosity. Nothing will make a jury more attentive than curiosity. If the jury is left unsatisfied but you satisfy them on summation, they will be grateful to you and may manifest their gratefulness by a favorable verdict.” ?????????????
B. THE LOST ART OF CROSS-EXAMINATION
Cross-examination is a combination of surgical technique (in the verbal sense) and logical analysis at riddle solving. Cross-examination is also a lesson in applied psychology. And yes, it is a matter of artistic style. A superb cross-examination is akin to the beautiful rhythm of a soft poem or the taste of sweet, buttered lobster during an exquisite meal. It is a science. It is an art.
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Unfortunately, cross-examination has become too mechanical. More often than not, lawyers in the courtroom cross-examine in a robot-like fashion asking most of the right questions in the correct order and generally for the proper reason. However, the cross-examination has little persuasive effect on the jury because it has not been properly analyzed as the scientist analyzes chemical reactions in a laboratory. More importantly, it has not been laid out before the trier of fact in the same fashion as an artist would lay out colors and schemes on a canvas. To a large extent, cross-examination has become a lost art.
It is high time that we trial advocates learn and learn again the art (as well as the science) of cross-examination. In this handout, we will discuss, analyze and dwell upon cross-examination as an art. We will learn how cross-examination when used as an art becomes more effective, persuasive, and more dynamic and effective. It is the artistic cross-examiner who is the result- oriented cross-examiner. This is the cross-examiner who seeks the truth on cross-examination and gets the truth whether the witness likes it or not.
C. LEGAL SIGNIFICANCE AND MEANING OF CROSS-EXAMINATION
Legally, cross-examination is the right of confrontations as against opposing witnesses. It is the opportunity to confront those who oppose your client legally, morally, philosophically, physically, contractually or through other means. Cross-examination is legally a means of testing, inspecting and conducting surveillance upon the opposition.
D. REAL WORLD SIGNIFICANCE AND MEANING OF CROSS-EXAMINATION
As a practical matter, cross-examination is the process of determining how bad the other side is going to hurt your client. (Hopefully, you already know how bad as a result of a good and thorough investigation and through your discovery.) Therefore, the significance of cross-examining in a practical sense boils down to making points with the witness in front of the jury. This is done through successful impeachment, pinning the witness down, demonstrating mistakes and errors in the witness’ testimony, obtaining concessions and favorable testimony and developing new facts favorable to your case.
E. PRINCIPLES OF CROSS-EXAMINATION
Often you will read about “rules” or “commandments” of cross-examination. You may hear in a speech at a trial advocacy seminar about the “laws” of cross-examination. In this section, we will discuss “principles” of cross-examination. I use the term “principles” because great trial advocates use a great deal of license in the manner in which they handle any given situation in the courtroom. Rules, commandments and laws are never to be broken. On the other hand, principles are to merely be considered as guidelines and strongly suggested recommendations to follow - yet not in a robot-like fashion.
1. CROSS-EXAMINE WITH CONFIDENCE.
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There is no place in the courtroom for the meek or for those who try cases on their knees. If you are confident, the jury will see your confidence and there will be a stronger tendency for them to follow you.
2. CROSS-EXAMINE IN A FIRM AND DIRECT MANNER.
3. CROSS-EXAMINE WITH PLAIN WORDS AND SHORT QUESTIONS.
4. A BRIEF CROSS-EXAMINATION IS GENERALLY AN EFFECTIVE CROSS- EXAMINATION.
5. STICK TO LEADING QUESTIONS BUT REMEMBER THAT THERE ARE TIMES WHEN EFFECTIVE CROSS-EXAMINATION CALLS FOR NON-LEADING QUESTIONS.
The real principle is that you must usually stick to only leading questions with hostile and adverse witnesses and most especially with expert witnesses. However, there are many witnesses where you obtain a great deal of valuable information to place before the jury who provide tremendous answers in response to general, open-ended questions and, yes, even to “why” questions.
6. LET THE JURORS PLAY DETECTIVE.
Here, the principle is really that you hold back a little bit for summation. Don’t try to score every touchdown or every home run in cross-examination.
7. ASK ONLY QUESTIONS TO WHICH YOU ALREADY KNOW THE ANSWER OR TO WHICH YOU CAN HANDLE EFFECTIVELY AND FAVORABLY REGARDLESS OF THE ANSWER.
8. USE YOUR EARS AND YOUR POWERS OF CONCENTRATION.
This principle deals with the proposition that a cross-examiner will be better off if he listens to the answer as opposed to following the procedure that is followed by many cross-examiners who merely continue on and on by asking question after question without really listening to and analyzing various answers received from the witness.
9. DON’T FIGHT AND ARGUE WITH THE WITNESS.
10. DON’T LET THE WITNESS REPEAT AND GO OVER THE STRONG POINTS OF DIRECT EXAMINATION.
11. GENERALLY, ALL QUESTIONS SHOULD BE THOUGHT OUT IN ADVANCE AND ASKED IN A MANNER SO AS TO PROHIBIT THE WITNESS FROM PROVIDING EXPLANATIONS OF TESTIMONY.
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12. DON’T SEEK PERFECT ANSWERS.
This principle really deals with the matter of avoiding one question too many. Once you have a good answer, be satisfied with it and don’t push on and on seeking the perfect answer because generally the answer does not get any better than a good old-fashioned “good answer.”
F. CROSS-EXAMINATION OBJECTIVES AND GOALS
The goals and objectives of cross-examination are:
1. Impeachment.
2. Pinning the witness down and solidifying his position.
3. Demonstrating mistakes and errors.
4. Obtaining concessions and favorable testimony.
5. Developing new facts favorable to you.
6. Showing the jury that the witness is not the kind or type of person that opposition counsel has portrayed the witness to be throughout the trial and in direct examination.
G. CROSS-EXAMINATION PROHIBITIONS
The following are the general prohibitions of cross-examination and should generally be followed:
1. Don’t ask the witness “why” or “how can you say that” (unless you can effectively handle the answer and unless you know in advance that you can effectively handle the answer).
2. Don’t ask the witness to explain his testimony.
3. Don’t ridicule or be sarcastic or discourteous (especially with children, elderly persons and less educated people).
4. Don’t let the witness repeat the direct examination.
5. Don’t try to perfect an already good response.
6. Don’t let the witness give a speech.
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7. Don’t show outwardly that you have been hurt by the answer - remember the meaning of “poker face.”
8. Don’t lose your cool.
9. Don’t exaggerate.
H. THE ANALYTICAL PHILOSOPHY OF CROSS-EXAMINATION
Effective and persuasive cross-examination is derived from a calculated and logical analysis of the facts. Cross-examination is the area where most lawyers “lose sight of the forest from the trees.” Remember: You can only go halfway into a forest because at that point you then start heading out on the other side. Simple - but true! Riddle and puzzle solving in order to arrive at the truth in a persuasive manner is what cross-examination is all about. Analyzing a problem in a trial such as the statement of a witness or a position to be taken by a witness is and should be the matter of merely pursuing the truth. A statement is true when it corresponds to reality and the most definitive means of deciding whether a statement is true is by comparing it with the real world or reality or by comparing it with our experiences within the real world. To analyze a puzzle is “to try to figure out” how the pieces fit together. To analyze a road map is “to try to figure out” where you have been, where you are and where you are going. To analyze a business investment is “to try to figure out” the upside and the downside of the probabilities as to what will happen to your money. And to analyze cross-examination is “to try to figure out” what has in fact occurred and how you can prove it to the satisfaction of the trier of fact in an effective and persuasive manner. Put simply, analysis is a means of “trying to figure out” a given problem, riddle, puzzle or set of circumstances.
I. THE LAW OF LOGIC AND REASON
Every falsehood admits to a negation which is true. Logic is merely the study of pursuing the truth. The study of logic is the study of methods and principles used in distinguishing correct from incorrect reasoning. A traditional part of the study of logic involves the examination and analysis of fallacies or mistakes in reasoning. Not only does this aspect of the subject give increased insight into the principles of reasoning in general, but an acquaintance with these pitfalls helps to keep us, as trial advocates, from falling into them. This knowledge of the study of logic is of value because when errors are easily detected, they are less likely to be made. You should think of logic as the science of the laws of thought or the science of reasoning. Every advocate as a logician must be concerned with the correctness of the completed process. The distinction between correct and incorrect reasoning is the central problem with which logic deals. Do yourself a favor and purchase some books on beginning logic at the local college or university bookstore. Study, learn and memorize the few key laws of logic and the important fallacies.
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J. THE LAW OF CROSS-EXAMINATION
In virtually all jurisdictions, the following are considered generally accepted rules of law or rules of procedure relating to cross-examination:
1. The right of cross-examination is absolute. Where a party calls a witness in direct examination, the right of cross-examination by the other party is an absolute right.
2. The scope of cross-examination is limited to those areas covered on direct examination. However, the trial judge must liberally allow a wide scope on cross-examination.
3. The rules of evidence in the given jurisdiction must be followed. For example, all matters covered must be material, relevant, competent evidence and the like.
K. A LESSON IN APPLIED PSYCHOLOGY - THE TRIAL
A trial is nothing more than a lesson in applied psychology. The trial involves a methodical approach at trying to understand what motivates judges and jurors and what influences them (properly). The trial as a lesson in applied psychology deals with facts, scientific studies, emotions, attitudes and all of those things that make up the human psyche and that influence the world in which we live. Cross-examination is a part of that lesson in applied psychology.
Now let us take a look at what some great minds in the field of trial psychology have theorized as philosophies over the years when it comes to the subject of cross-examination.
“Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.” Dean John Henry Wigmore
“The following sequence of logic can be used as the basis of all cross-examinations. It will elicit the truth of one’s position or expose the witness’ untruthfulness.
Man above all wants to appear respectable. But truth and respectability do not go hand in hand. Truth and logic do, however, go hand in hand. Man will be illogical in order to remain respectable. Therefore, if you challenge his respectability, he will become illogical; hence, expose his untruthfulness.
One who successfully practices the art of cross-examination will find that he constantly challenges the respectability of the witness and gently, thereby, prods him into the wonderland of illogic.” Scott Baldwin
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“If the witness is a decent, unprejudiced citizen who has told the substantial truth or has said little to hurt you, leave him alone; smile at him but don’t cross-examine him. And if you decide to cross-examine, you should definitely have in mind what you hope to gain by your cross-examination. You will find it more elaborately in the books, but in my book cross-examination should be pointed to two objectives: either to destroy the story told by the witness or to destroy the witness himself. If neither of these objectives is obtainable (and if you have properly prepared your case, you should know the prospect), a pointless and scoreless cross-examination does your case more harm than good. And when you have scored your point on cross-examination, for heaven’s sake, quit.” - Max Steuer
“In most trial situations, it is the witness and not the cross-examiner who holds the position of strength. To start with, the sympathy of the jury is with the witness. The lawyer is downgraded because he is a paid advocate or has a contingent interest in the result of the case. A witness is, in most instances, an ordinary, disinterested citizen - like the jurors - appearing usually involuntarily and sworn to tell the truth of what he knows about the case. If he comes back at the cross-examiner with sharp, telling answers, the cross-examiner’s case suffers. Even if the cross-examination succeeds in confusing the witness, the jurors are more likely than not to ascribe that confusion to the lawyer’s cleverness in taking advantage of the witness’ natural embarrassment in his strange environment than they are to conclude that the witness is lying. A further hazard lies in the fact that the only effect of a cross-examination which takes up and repeats every item in the direct examination and develops no qualifications of inconsistencies is that the witness has doubled the impression on the jury which he would have made had there been no cross-examination. Finally, every experienced trial lawyer knows that an unexpectedly pertinent and dramatic answer on cross-examination more than doubles the harm it would have done had it been given on the direct.” Francis X. Busch, The Trial Lawyer’s Guide, February, 1963.
“The right of a full and fair cross-examination of a witness upon subjects the door to which is pushed ajar on the examination in chief is an absolute right.” Justice T. Frank Hobson, Coco v. State, 62 So.2d 892 (Fla. 1953).
“There was one learned judge who said cross-examination does not consist in repeating in a louder tone the evidence in chief. The method that I personally like - this is a personal confession - is to start gently with a few quiet, innocuous questions. This is a technique that will serve not only for hostile witnesses of fact but also for expert witnesses on technical subjects. These questions will be readily answered. You put them so courteously that it is almost ill-mannered not to agree, but all lead along the path by imperceptible degrees to the moment when you can put the vital question that has to be answered. The witness will have committed himself to a position from which he cannot retract. When the final question comes, he can escape only by being obviously evasive or patently dishonest....
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“Keep him under control. Lead him along, and then as eloquently, as quietly and as smoothly as possible, cut his throat.” Sir Geoffrey Lawrence
Hence, we can see from the above that there are many varied approaches to cross- examination and, indeed, many theories and philosophies as to what the psychology of cross- examination is all about. The ultimate conclusion is that if your cross-examination does not tend in logic to have a persuasive or influencing effect upon the judge or jury, then it is pointless.
L. RELATING CROSS-EXAMINATION TO THE VARIOUS PARTS OF TRIAL
Just as “no man is an island,” it can also be said that effective cross-examination cannot be considered independent of the other phases and aspects of the trial. It must interrelate in a cohesive and organized manner so as to effectively persuade and influence the judge and jury. A cross- examination not understandably related to the other phases of the trial and also to the cross- examination of other witnesses is, in effect, no cross-examination at all.
1. Relating cross-examination to voir dire. Explain the meaning of cross-examination at trial in voir dire. Let the jurors know what cross-examination is all about and what it means. You be the instructor or professor who teaches them the real effect of cross-examination.
2. The opening statement. In your opening, explain again the meaning and purpose of cross-examination in such a manner so as to include it in your statement as to “what the evidence will show.” As you explain your case to the jury, keep in mind that each member of that panel must - I repeat, must - have a clear understanding of what cross-examination means. Let the jurors know that cross-examination is a means for one side to actually “test” either the testimony for the other side or a witness for the other side and that person’s motives, intentions, credibility, and the like. And keep in mind the jurors generally do not perceive the result of cross-examination as being “so- so.” Rather, they perceive that the cross-examiner has either won or lost with a given witness each time the cross-examiner returns to counsel table.
3. Direct examination. In this instance, we are referring to how the direct examination of your witnesses relates to the cross-examination that you will conduct as against your opposition’s witnesses. Here, the planning must be detailed and tedious. This is the time to establish key points in your case in chief. If necessary, go over them again and again with various witnesses. Once the point has been clearly made, you have then effectively set the stage for cross-examination of the opposition’s witnesses on these key points. If you cover key items in your direct case and then leave them behind when you move on to cross-examining the opposition witnesses, you have failed to continue to “hammer home” the main points and ideas. In short, you have left them behind. Let us now look at a few examples of how to relate your direct examination to your later cross- examination.
a. Your witness is Mary Jones, M.D. She is a “board certified” obstetrician. As you take her through her qualifications, you have her explain in detail how one becomes board certified and the meaning and significance of board certification. Later in the trial, you cross-examine the defendant physician, Bart Maverick, a physician who is
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“board eligible” but not board certified. You learn (probably a matter already learned through discovery) that he is board eligible and not board certified as a result of having twice failed his boards. On direct examination, you have established through your expert the true meaning and significance of board certification. You now relate your direct examination to the later cross-examination by demonstrating to the jury a significant lack in the qualifications of the defendant obstetrician. The point is made. The connection is made. The relationship between direct and cross helps the trier of fact to understand the point.
b. You are a criminal defense attorney in a felony case being tried before a jury which involves charges of possession and sale of cocaine. You want to relate your cross- examination of government witnesses to the direct examination of your witnesses. The government calls the key law enforcement officer who testifies as to the “drug deal.” You are particularly concerned about the location of the transaction because your client has told you that there is no such location in that area of town. You then painstakingly have the government witness map out for you in a step-by-step fashion the roads and streets that he used to get to the location of where the government alleges the incident took place. You have him go over it again and again and repeat it three or four times if necessary. You now know that you have established through cross-examination of the government witness that there is no such roadway or street of travel as he is referring to, at least as to the latter part of the trip. You even use a chart to diagram out his directions. Later, as you put on your evidence, you call a mapmaker and then a surveyor to demonstrate clearly to the jury the lack of any such location. The point has been made. The connection has been made. You have effectively interrelated direct and cross.
c. You are defense counsel in a personal injury lawsuit. Plaintiff takes the stand and testifies about her injuries. You treat her with kid gloves and only ask four or five minutes worth of questions. You then, in a very deliberate manner, have her testify on cross-examination that, since the time of the injury, she has not been able to and, in fact, has not participated in the recreational activities of jogging, volleyball, badminton or aerobics. She leaves the stand. Your first witness is a female private investigator who happens to specialize in surveillance. The investigator testifies that she has taken surveillance films of the plaintiff. A sufficient foundation is laid, the court rules. The court rules the surveillance films admissible. The films are then played to the jury, who now see that plaintiff gave false testimony. The point is made. The connection is made. The interrelationship between cross and direct is made. Your opposition is now faced with a tremendous dilemma.
Although this matter of relating direct and cross-examination to one another seems so logical and seems to make so much common sense, it is more often than not a matter that is not well thought out, or well planned, or well delivered in trial.
4. Summation. Understanding that “cross-examination is the first step of final argument,” it then becomes obvious that failure to relate cross to summation will generally doom your case. Cross-examination should generally be considered as the ultimate form of puzzle solving
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or riddle solution available to mankind other than absolute science and mathematics. Cross- examination is the time when you reach conclusions and arrive at solutions. The ultimate connection is then explained to the jurors as is the significance of the connection during summation. Cross-examination and summation go hand-in-hand. And always in summation it is imperative to discuss matters that were covered in cross-examination that were of key importance. Remember also to save some points of cross-examination until summation. In this way, the jurors, at least to some extent, are allowed to act as either a Sam Spade or a Sherlock Holmes.
5. Jury Instructions. Many trial advocates believe that the jury instructions are perhaps the most important aspect of the trial. The reason is simple: This is the time when the judge tells the jury about their ultimate guidelines, the laws to be applied. It should be readily obvious that if any phase of the trial does not interrelate with the jury instructions, then that phase has little or no effect on the jury except in rare circumstances. As you cross-examine, remember to use key language in your questions identical to or substantially identical to the key language that will be used during the jury instructions. [The jury instructions should be prepared not just for the judge and jury but for yourself in order to assist you in your preparation as well. And this preparation and planning regarding jury instructions should be done weeks and, yes, even months in advance of the actual trial date.]
M. PREPARATION FOR CROSS-EXAMINATION
There are four key matters that must be considered and then followed on a step-by-step basis in readying the trial advocate for cross-examination:
1. Cerebration. Cerebration is a matter of brainstorming. It is a process of thinking and compiling ideas, strategies, approaches, plans and attacks. Cerebration is the process of using your brain to think, wonder, imagine and theorize. It is a step necessary to cross-examination. As a general rule, it is the first step. As you cerebrate, remember that you are not yet required to come up with the right plan or approach. In cerebration, merely put together every thought that you can possibly conjure up together. Then think about each plan. Attack each plan. In short, analyze each plan as this is the second step in this approach.
2. Analysis. This is the step of planning cross-examination where you gather together the ideas derived from your cerebration and determine through a process of logic what will work and what won’t. Leave no stone unturned in analysis of your problems. Ask every question you possibly can as to why a given question on cross-examination or approach to cross-examination will not work. This is the aspect of preparation where you play devil’s advocate.
3. Skeletal outline. Effective cross-examination is generally conducted through the appearance of spontaneity combined with organization. The “hip shoot method” is no method at all. The method of having your questions all written out and then referring to them as you continue through your cross-examination is likewise an ineffective means of cross-examination.
As you prepare for your cross-examination, draft a skeletal outline. It is nothing more than a key word index. With just a split second glance at your skeletal outline, you will recall the next
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entire area of cross-examination that needs to be covered with the witness. It is an easy and effective method. It is the most organized way of going about most cross-examinations. It does not detract from the drama and emotions of cross-examination.
A sample skeletal outline follows:
1. Background and Qualifications
a. Not board certified - failed boards
b. Undergraduate school - not accredited
c. Bacteria article turned down for publication as being scientifically unsupported (mark and identify article)
2. Cover differential diagnosis procedure
3. Records alteration
a. Page 27 - hospital records
b. Page 2 of his office notes - dictation part
4. Cross-examine re: his deposition [items paper-clipped and marked in deposition - refer directly to deposition]
5. Concessions re: causation
a. Medical causation
b. Legal causation
6. Textbook cross-examination
a. Book 1
b. Book 2
c. Authoritative article
7. Concessions re: damages
The above is just an abbreviated form of a skeletal outline. The point is that preparing a skeletal outline assists you in your organization and overall plan of attack. It is easy to refer to. Total preparation, however, is required as counsel must have a full and complete understanding of
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the meanings of the terms on the skeletal outline. Obviously, this means that you must prepare it yourself. Never rely on a law clerk or paralegal to prepare your skeletal outline for you.
4. Trial guide. A sample trial guide follows:
GREER v. DAVIS/ABC
I. Motion in Limine
II. Jury Questionnaire
III. Jury Selection
IV. Plaintiff’s Opening
V. Objections During Defense Opening
VI. Plaintiff’s Case-in-Chief
A. Move in Exhibits Not Objected to
1. Joint medical exhibit 2. (#129) package insert and labeling 3. (#202) important information sheet 4. (#203B) ABC SOP 5. (#203C) DEF SOP 6. (#204) ABC informed consent memos 7. (#495) HOW Chron 30:476-78 (1976) 8. (#640) 1977 NNXS re: ESR 9. (#642) 1980 McCalls 10. (#102) 9/10/61 Smith to Jones letter 11. (#103) Carter article 12. (#104) Blake Hotel memorandum 13. (#105) Parks promo pieces 14. (#109) Baker patent 15. (#110) Davis, Inc. project 24-2 memo 16. (#110) White letter (Davis, Inc.) 17. (#112) Brown (Davis, Inc.) memo dated 8/16/78 18. (#114) Castle to Frank (Davis, Inc.) memo dated 3/14/80 19. (#117) Ashton, Barker article 20. (#119) Composite batch records 21. (#120) Composite computer records (adverse reactions) 22. (#121) Composite computer records (product complaints) 23. (#124) Transfer agreement (+ schedules 5 and 6) 24. (#128) Composite molarity modification records 25. (#419) Stein, Feld article
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26. (#643) Articles attached to Ronald Fournet deposition 27. (#491) Golden article
B. Request judicial notice of pleadings/documents relative to county notice defense (attached to Plaintiff’s Motion for Judicial Notice No. 1)
C. Request judicial notice of New York decisional law relative to liability of successor corporations (attached to Plaintiff’s Motion for Judicial Notice No. 2)
D. Publish selected Davis documents to jury (overhead projector)
E. Publish Tennessee Crippled Children’s records re: Thomas Greer
F. Publish sections of Brandon Memorial records (overhead)
1. Cause and effect 2. Parental epilepsy 3. Otitis media
G. Read selected responses from county’s answers to Request for Admissions plus interrogatories re: causation (general and specific)
H. Read selected responses from Davis’ Request for Admissions plus interroga- tories re: causation (general and specific)
I. Marianne Clark, M.D. (depo)
1. No birth defects 2. Causation
J. Fred Miller, M.D. (depo)
1. No birth defects 2. Causation 3. Limited prognosis
K. David Lander (neurologist) (live)
1. Scope of injury - permanency 2. Medical causation 3. Limited prognosis 4. Liability of county(?), liability of Davis(?)
L. Tim Wall, M.D. or Keith Dougherty, M.D. (live)
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M. Joseph Dauber (videotape)
1. Tape 1 (labeling) 2. Tape 2 (half dose) 3. Tape 3 (instant case)
N. Ray Goodwin
O. Ralph Sterling (videotape)
1. No mice autopsied for neurological damage
P. Ronald Fournet (depo)
1. Concluded in 1960s that vaccine neurotoxic 2. Came up with nontoxic potent extract 3. Abandoned due to low yield (economics)
Q. Chris Sweet (damages) (day-in-the-life film)
R. Gary Persson, M.D. (depo)
1. Whole cell vaccine is neurotoxic 2. Acellular feasible in 1960s
S. Michelle Tyler, M.D. (videotape)
T. Bob Hawk (videotape)
1. Told by Seaver and Matz that vaccine caused reactions
U. Tim Wolf, Ph.D. (videotape)
1. Product defect 2. Resuspension
V. Publish Transfer Agreement (overhead)
W. Missouri doctor (deposition)
1. Describe other adverse reactions with same lot
X. Gene Morris, Ph.D. (bacteriologist) (live)
Y. Keith Dougherty, M.D.
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Z. Judicial Notice of F.S. _____ (immunization statute) (1976)
AA. James Long (Tennessee Immunization officer) (depo)
1. No pertussis required for children in Tennessee 2. No epidemic
BB. Publish county documents re: procedures/ important information sheet (overhead projector)
CC. Sherry Hiller (grandmother)
1. Describe time Thomas Greer away from Rose
DD. Shanna Gradon (live)
EE. Clerk of Probate Court, Brandon County (live)
1. Rose adjudicated incompetent 1970 2. Rose never unadjudicated
FF. County employee depositions
1. Nurse Murdy 2. Ian Fields, M.D. 3. John Lawrence, M.D. 4. Beth Faulker, R.N.
GG. Rita Farrell (reading specialist) (live)
1. ABC important information sheet has eighth grade reading level
HH. Bruce Smythe, E.ed.
1. IQ etc. of Rose Greer 2. IQ etc. of Sherry Hiller
II. Harold Cantell, Ph.D. (warnings expert) (live)
JJ. Barbara Popp, R.N. (county liability expert) (live)
KK. Douglas Deerfield (county liability expert) (live)
LL. Jonathan Pullen, M.D.
1. Scope of injury
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2. Prognosis without care 3. Recommendation for care 4. Prognosis with care 5. Cost of care 6. Causation (medical) 7. Liability of county
MM. Lawrence Griffen (rehabilitation) (live)
NN. Mortality tables
OO. All documents relied upon by economist
PP. Christopher Waller, Ph.D. (economist) (live)
QQ. Plaintiff rest (check exhibits first)
VII. Defense motions for directed verdict
VIII. Plaintiff motions for directed verdict on notice defense
IX. Defense Cases-in-Chief
A. Liability expert B. Annuity expert C. Damage witnesses 1. Louise Cochran (school psychologist) D. Marianne Clark, M.D. E. Jeffrey Arnold, M.D. F. Florence Rydell, M.D.
X. Plaintiff’s Motion for Directed Verdict
A. County’s notice defense B. Liability of successor corporations C. Negligence by Davis for failing to directly warn parents
XI. Plaintiff’s Rebuttal
A. Richard Black, Ph.D. B. Douglas Deerfield, M.D. C. Barbara Popp, R.N.
XII. Renewed Motions for Directed Verdict
XIII. Charge Conference
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XIV. Plaintiff’s Closing Argument
XV. Objections During Defense Closing
XVI. Plaintiff’s Rebuttal
N. A WORD ABOUT STYLE
Style is personal. Style is a matter of perception and here I refer not only to perception of the trial advocate but also as to how the jurors perceive the trial advocate. When you hear a trial advocate referred to as “smooth in the courtroom,” you are hearing someone refer to the advocate’s style. When you hear someone refer to a trial advocate’s actions in the courtroom as disjointed and haphazard, you are hearing someone refer to that advocate’s style.
You are born with certain styles and they cannot be altered to a significant degree. But we can all work on our style and continue to better ourselves by following these key guidelines:
1. Never, never try to be anyone other than yourself.
2. Any courtroom activity of the advocate that appears insincere is a matter of poor style.
3. The more comfortable you feel about your presentation, the more appropriate your style.
4. Near perfect practice makes near perfect approaches to style.
5. Self-criticism is the right approach.
6. Only a fool stays with the same plan when the plan is turning out to be a failure. There is nothing wrong with navigational changes during the course of litigation, or even the course of a trial, or even the course of a particular argument.
7. Feeding your ego is a sure road to courtroom suicide.
8. Make sure that your every word, thought and action is in the best interests of your client (as opposed to the best interests of yourself - although they may be one and the same).
O. CROSS-EXAMINATION OF THE SENSES
Isn’t the testing and inspection part of cross-examination really a matter of testing and inspecting the senses? Since we learn through our senses, it is also through our senses that we fail to learn and understand. One additional sense that people often overlook, however, is what I will
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refer to as the sense of “perception.” This is the means by which people often believe that certain things have happened or have not happened, or exist or fail to exist, not so much based on perception, not so much based on what they have learned through their senses, but based upon information derived from their senses as well as from experience from the world in which we live. Accordingly, it is equally important to cross-examine on the “sense of perception” as well as on the other senses.
1. Cross-examination regarding matters of sight.
Factors to be considered:
a. Quality of eyesight of the witness (20/20 vision or half blind).
b. Setting of the environment (day or night, rain or sunshine).
c. Human factors (is the witness frightened to death when she sees the event, emotions).
d. Physical state (is the witness tired, is the witness color-blind).
e. Intentional distractions (does the witness view the event in front of the bank teller while the defendant and co-defendants are carrying on distracting activities in another area of the bank lobby).
f. Motive to see (just as spectators are generally more highly motivated to watch the activity of running backs more closely than the activity of interior linemen, so too are most witnesses more highly motivated to see varied activities).
g. Duration of the view (how long did the witness visually focus on the event or happening; how long did the witness have the opportunity to view the event or happening).
h. Intensity of sight (a young mother struck by a foul ball views each pitch to her young son with more intensity than she does pitches thrown to other batters).
i. Effect on witness or others close to the witness as to what witness saw (i.e. what’s in it for the witness?).
j. Ability to articulate what witness visualized.
2. Cross-examination factors regarding the sense of hearing/sound:
a. Quality of witness’ hearing ability (ability to hear pin drop versus need to have people speak in a loud tone in order to hear them).
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b. Setting of environment (peaceful, countryside atmosphere versus carnival).
c. Human factors (witness in impending death situation; emotions).
d. Physical state (witness exhausted at time of event).
e. Intentional distractions (other noises distracting witness intentionally staged by wrongdoer).
f. Witness’ motive to hear.
g. Duration of the sound.
h. Intensity of hearing.
i. Effect of hearing or sound on witness or others close to him as to what he heard (what’s in it for him; “My husband merely raised his voice a bit at the children,” as spoken by a loving wife as opposed to same speaking heard by an objective witness who testifies that, “He screamed and hollered as he struck the child.”)
j. Ability to articulate what he heard.
3. Cross-examination factors regarding sense of taste:
a. Quality of taste.
b. Setting of environment.
c. Human factors.
d. Physical state.
e. Intentional distractions.
f. Motive to taste.
g. Duration of taste.
h. Intensity of tasting.
i. Effect on witness or others close to him as to what he tasted.
j. Ability to articulate what was tasted.
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4. Cross-examination factors dealing with sense of feel/touch:
a. Quality of sense of touch.
b. Setting of environment.
c. Human factors.
d. Physical state.
e. Intentional distractions.
f. Motive to feel or touch.
g. Duration of touching.
h. Intensity of touching.
i. Effect on witness or others close to him as to what he felt or touched.
j. Ability to articulate what he felt or touched.
5. Cross-examination factors dealing with sense of smell:
a. Quality of witness’ ability to smell or detect odor.
b. Setting of environment.
c. Human factors.
d. Physical state.
e. Intentional distractions.
f. Motive to smell.
g. Duration of smelling.
h. Intensity of smelling.
i. Effect on witness or others close to him as to what he smelled or as to what odor was detected.
j. Ability to articulate what he smelled.
6. Cross-examination factors regarding “sense” of perception:
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a. Quality of the perception (is it based on fact, or assumptions, or hearsay, or something else?).
b. Setting of environment (what are all the circumstances that make up how the perception has been made; who, what, where, when, why and how?).
c. Human factors.
d. Physical state.
e. Intentional distractions.
f. Motive to perceive in a given way (here, bias plays a major role).
g. Duration of the perception (this includes origin of the perception).
h. Intensity of the perception.
i. Effect perception will have on the witness and others close to him.
j. Ability to articulate the perception.
P. ANATOMY OF A CROSS-EXAMINATION
“Anatomy” is defined as the detailed examining of the parts or elements of a thing. Accordingly, the “anatomy” of a cross-examination necessarily would involve a detailed analysis of the various elements of a structured cross-examination. Just as there is a structure to a sentence and just as there is a structure of a Broadway play, so too there is a structure or “anatomy” of a cross- examination. Consider well the parts or elements of a good cross-examination:
1. The brain of cross-examination: This corresponds to the overall “point” you are making to the jury.
2. The eyes of a cross-examination: This corresponds to what the jurors will “perceive” as the point or your reason for cross-examining on a given matter.
3. The heart of a cross-examination: This corresponds to the emotional aspects of the cross-examination.
4. The lungs of a cross-examination: This corresponds to the breath of life or “substance” of the cross-examination.
5. The hands of a cross-examination: Matters that will grab and hold the juror’s attention.
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6. The legs of a cross-examination: This corresponds to the energy and ability to run with a great cross-examination.
Consider also the importance of knowing and understanding the six points of vulnerability to cross-examination and check these possibilities for cross-examination as to every witness:
1. The witness’ knowledge;
2. The witness’ recollections;
3. The witness’ perceptions;
4. The witness’ actions;
5. The witness’ state of mind;
6. The witness’ opinions.
Q. CONCLUSION
Cross-examine with spirit and energy and confidence. Look at the jurors when you cross- examine as you must always keep in mind that “cross-examination is really the first stage of final argument.”
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IV. HOW TO MAKE EVERY DEPOSITION A WINNER
A. INTRODUCTION
Depositions form the basis and foundation as to what ultimately occurs as a “result” in virtually all tort cases. The information derived in depositions, more often than not, determines whether a case will settle and, if so, the amount. The quality of the deposition determines the strength of your evidentiary presentation at trial, whether it be through the direct presentation of evidence or through cross-examination. Although the deposition is only one of the various means of discovery available to the trial advocate, it is generally the most vital and crucial in terms of the organization, structure and “brick laying” of your case. Strong and good quality depositions generally lead to an excellent settlement or an excellent result in the courtroom, while poor quality or “poor result” depositions generally lead to an unsatisfactory settlement or resolution of the case, or, most often, a negative and unsatisfactory jury or nonjury verdict. Therefore, it is absolutely essential that the trial advocate place a mega-emphasis on depositions in each case, including determinations as to who to depose, preparation, organization, questioning and more. A simple axiom to follow is this: “Take every deposition as if it is your first deposition and your last deposition in both the case and in your legal career.” Follow that axiom and you will have a superlative level of success in your depositions.
As you begin the preparations for any given deposition, keep in mind the following deposition objectives or functions/purposes of depositions:
(1) Obtaining admissions or concessions from a witness;
(2) Preserving favorable or important testimony;
(3) Exposing inconsistencies either in the opposition theory or with respect to the particular witness;
(4) Weakening the deponent as a trial witness;
(5) Eliminating the deponent as a trial witness;
(6) Obtaining support on your own behalf for a motion, or a theory or a given issue;
(7) Other/miscellaneous (i.e., establishing authenticity of documents, concessions on behalf of the corporation, filling in gaps and elements of proof, and much more);
(8) Assessing the witness’s demeanor and credibility.
Never set or take a deposition unless:
(1) It is necessary.
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(2) It will help your case in the short run or long run (or if you are unaware of whether it will help you, you need to at least clarify the position of a given witness or party - even though that witness or party may ultimately hurt you, thus, at least giving you knowledge of the potential harm so that you can prepare against it).
(3) You have clear goals for the deposition.
(4) You have a clear strategy for that particular deposition.
(5) You are totally and absolutely prepared to take the deposition.
Many cases are lost due to a lawyer inadequately preparing for, or ineptly or carelessly taking, a deposition. I have often heard lawyers, as they ready to take a deposition, say such things as: “Well, let’s just see how it goes”; or “We’ll get over there and play it by ear”; or “Well, let’s cross that bridge when we get to it”; and so on and so forth. Each of these sayings is of someone who is unprepared and without a clear strategy and clear set of goals in mind for the preparation and taking of the deposition. Don’t ever let it happen to you. Remember: There is no such thing as a “routine” deposition or a “run-of-the-mill” deposition.
B. THE TWELVE-STEP METHOD OF ASSURING THAT EVERY DEPOSITION YOU TAKE IS ALWAYS A WINNER
Step #1 - Have a clear understanding of the seven cardinal sins of discovery.
(1) S.O.B. Dilemma
S.O.B. = “Short of Breath.” This is the sin of laziness. It deals with a lawyer’s failure to prepare with intensity. Some lawyers push on and on and on regarding a given point in a deposition, while others simply give up almost immediately before getting to the crux of the matter. Don’t ever give up. Don’t let a witness get away with giving you a vague answer. Make the witness be specific. Never give up. If the witness is vague or tries to avoid giving you the information you want, keep asking questions until you have extracted every piece of information you can from the witness. For example, to a witness who responds, “I don’t know,” follow up with these questions: “Did you once know?” “Did you write it down when you knew?” “When did you know?” “If you had to find out the answer today, whom would you ask?”
Proper and adequate discovery requires tremendous work, effort and preparation. This work, effort and preparation comes most often in the form of being in great “condition” in terms of your mental readiness, much the same as a marathon runner must be in great condition. The marathon runner who quickly becomes “short of breath” is really no marathon runner at all.
(2) L.M.P.D.I. Syndrome
L.M.P.D.I. = “Let My Paralegal Do It.” Delegation is good. It is important. It is necessary. Tragically, some lawyers want to delegate virtually everything just because others may be available
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to do it. Paralegals and lawyers have their places and their responsibilities. Never give a lawyerly responsibility to a paralegal just because you do not want to do it yourself.
For example, a paralegal should not be the one to prepare a witness for testimony at trial - that is the duty and responsibility of the lawyer. A paralegal should not prepare a witness for deposition, as that is the duty and responsibility of the lawyer. Don’t assign a paralegal to go with your expert to “the scene” and conduct activities there - go yourself and be there with the expert. Too many lawyers are falling into the trap of turning over so many of their responsibilities and duties to others.
Improper delegation is a trap you are setting for yourself. Be careful!
(3) Goal Depletion
This is the failure to set goals. Every case in litigation should have specific goals set, and every case in litigation should have a specific, detailed and written “discovery plan.”
(4) Fanticipation
Fanticipation is what I refer to as “fantasy anticipation.” It is where a lawyer sits back during the discovery phase of litigation and anticipates that things are just going to “fall into place.” Reality dictates that it probably won’t happen that way and that it is totally inappropriate for a quality trial lawyer to so anticipate.
• Never anticipate luck.
• Never anticipate a weak opposition.
• Never anticipate that anything in litigation will go your way without your first giving it a 110% effort.
• Never anticipate....
(5) Arena Teloscopy
This deadly sin involves failing to think ahead about where you will ultimately travel to in your case. All too often, lawyers ask questions and get answers during depositions that may look nice and sound nice to the lawyer, but which won’t make one darn bit of difference to a judge or a jury at any time in the future.
Remember during the discovery phase of your case that your ultimate goal is to prepare everything with a view towards winning your case at trial.
(6) Holstering
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Gunslingers in the Wild West all seemed to wear their holsters in a different way and prepare for their duels differently. History has taught us that most of them were so caught up with their own egos that they simply got into the habit of “winging it” at the time of battle.
“Winging it” is a sin. Although all great trial lawyers must know how to improvise and argue extemporaneously, these great trial lawyers also must be thoroughly prepared on every point and anticipate everything wrong that might happen so as to be able to combat that problem or confront that issue.
“Holstering” has to do not only with position and placement of the holster, but also with the product that will fit into the holster - namely, a weapon - and how the Wild West gunslinger might utilize that weapon. When you think of “holstering,” think of it in terms of your preparation with intensity on every single detail of the case.
(7) L.O.C.S.
L.O.C.S. = “Long Organization/Cerebration Short.” Don’t be long on organization and short on cerebration.
Some lawyers go into discovery and ultimately into trial with tremendous organization and administrative skills, yet they have not done the proper “cerebration” on all of the issues in the case. Although that lawyer’s case may “look great” and “sound great” and “feel great,” it may not “mean great” to the trier of fact and, therefore, you lose - and that ain’t great!
To avoid this, brainstorm on every issue with your partners, colleagues, experts and others. Play the devil’s advocate on the issues. Cerebrate, cerebrate, cerebrate.
Step #2 - Take all depositions as videotape depositions (unless there is a strategical or logical reason not to do so).
Virtually all depositions in all tort cases should be taken as videotape depositions. There are but few exceptions, such as the taking of the deposition of an administrative witness, a medical records custodian, or perhaps a witness who is favorable to you and whom you believe will make a “poor witness” on video.
Save for these few exceptions, it is strongly recommended that you take all of your depositions as videotape depositions. This includes both favorable and unfavorable fact and other liability witnesses, as well as your damages witnesses. In addition, it is recommended that you always consider filing a “cross-notice of taking videotape deposition” with respect to witnesses whose depositions are set by the opposition.
Factors to Consider
(1) Accurate Preservation of Testimony - The videotape deposition truly and accurately preserves the testimony of the witness. Unfortunately, testimony of a witness in a non-videotape deposition is often not “preserved” at all. The regular
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deposition does not indicate much of anything with respect to mannerisms, tone of voice, attitude, demeanor, poise of the witness, hesitation when responding, and much, much more.
(2) Accurate Prediction of Trial Testimony - The videotape deposition gives the trial advocate a very accurate prediction as to how the witness will testify and act at trial. What you see and hear on a videotape deposition is what you will most likely see and hear at trial. On the other hand, the non-videotape deposition is not an accurate predictor at all. In fact, what we often see in a witness at a non-videotape deposition is totally the opposite of what we actually see and hear from that witness at trial. The difference is like day and night.
(3) Vague and Obscure Answers Generally Eliminated - Videotape depositions ordinarily eliminate most of the “I don’t know’s” and the “I don’t remember’s.” The reason is simple: The witness believes that he or she, in looking into the camera, is actually speaking to a judge or jury, and the witness is more inclined to give straightforward answers in a videotape deposition as opposed to fudging and hedging and doing the old “soft shoe” or the “proverbial tap dance.” When this happens in the regular deposition, the witness more often than not gives you little or nothing that can be of assistance and then is a well-prepared and problematic witness for you at trial.
Obviously, there are some witnesses whom you would just as soon have demonstrate things that they “don’t know” and “don’t remember.” This, of course, is one reason why there are certain exceptions to the taking of videotape depositions. However, we have generally found it is better to find out what the real trial testimony is likely to be with an accurate prediction via the videotape deposition.
(4) Shenanigans Eliminated - The videotape deposition eliminates virtually all of the shenanigans and games played by some attorneys in depositions. The hand and arm signals decrease. The witness does not look to the lawyer for answers as in the regular deposition. Lawyers behave themselves in videotape depositions - and if they don’t - they’re on camera with their misbehaviors.
(5) Judge and Juror Appreciation - Judges and jurors tend to believe that the reading of a lengthy deposition at trial is ridiculous and stupid and boring. They know that in this day and age there simply must be a better way. And there is. This “better way” comes in the form of the videotape deposition. Judges and jurors appreciate watching a deposition on video much more than having it read to them in whole or in part. Obviously, it is up to counsel to make the videotape deposition interesting and to the point. Remember, the long and drawn-out videotape deposition can prove to be almost as bad as the reading of a regular deposition by transcript.
(6) Impeachment Intensity Increased - All courts have the discretion or authority to allow counsel the right to impeach prior deposition testimony by actually playing certain excerpts from the videotape deposition. Most judges will allow this in civil
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and criminal cases. It is far more effective and it significantly increases the intensity regarding the impeachment.
(7) Witnesses’ Activities Captured - In many depositions, witnesses are asked to point to certain areas on their bodies. Sometimes they are asked to give demonstrations. In other instances, witnesses in deposition are asked to draw sketches of scenes. The list goes on and on. All of these activities are preserved completely in the videotape deposition. Unfortunately, they are only “described” by lawyers in the regular deposition, and sometimes there is nothing in the record about these activities at all.
(8) Demonstrative Evidence Utilization - Demonstrative evidence is very effectively utilized in the videotape deposition. This includes having witnesses describe or “demonstrate” with medical illustrations, video and computer animations and reconstructions, anatomical drawings, models, and more.
(9) Point Made - Lawyers and witnesses tend to “get to the point” in videotape depositions far more effectively and efficiently than in regular depositions. There is less time wasted and very little use of “filler questions” in videotape depositions.
(10) Lawyer Preparation Enhanced - Lawyers get better prepared for videotape depositions than for regular depositions. This is simply a fact. This better preparation increases the likelihood of the sides either settling the case earlier or learning at an earlier point that the case will have to be tried - which we believe is advantageous to your case.
(11) Opposition Attention-Getter - Your opposition knows you are serious about the litigation and trial of your case when you start taking depositions by videotape. The opposition knows that you are putting in an all-out effort in terms of time and money in order to move forward with the preparation of your case. Setting depositions by videotape is a significant attention-getter for the opposition, whether it be in a civil or criminal case.
(12) Atmospheric Change - The atmosphere within which a videotape deposition is taken is ordinarily far different from the atmosphere of a regular deposition. The atmosphere in the videotape deposition setting is generally more formal, more intense, more serious, and more like the atmosphere in an actual courtroom where a judge and jury will be present.
All of the above factors should be considered in your decision-making process regarding the setting of a deposition as a videotape deposition or a regular deposition. Obviously, some of the above considerations may well persuade you that a videotape deposition would be an incorrect strategy. Our recommendation is that you simply never fail to consider taking a given deposition as a videotape deposition (and this holds true with the filing of a “cross-notice” of a deposition taken by another party, as you may well want it videotaped).
Step #3 - Prepare and utilize a deposition notebook.
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There are three vital keys to the successful taking and completion of a deposition:
(1) intense preparation;
(2) brainstorming/analysis/playing devil’s advocate; and
(3) organization.
Most depositions do not turn out nearly as well as they could for a given party. Generally, it is a result of one or more of the following flaws in the litigator’s approach:
(1) having the deposition assigned to you at the last minute because a “senior partner has a conflict” and can’t make it;
(2) winging it;
(3) treating it as a “routine” or “run-of-the-mill” depo;
(4) somehow thinking that a particular depo is less important than some of the other “more important” depositions in the case.
The trial advocate must always consider every deposition to be critical and vital to the case. This is true even when the deposition is that of either a records custodian or someone who must merely be deposed to lay a foundation for a single piece of evidence.
We strongly urge and recommend that you consider putting together various “deposition notebooks” in your cases. Some deposition notebooks are to be prepared specifically for a given witness, such as an expert, the investigating officer, or an opposing party. Other deposition notebooks can be prepared in a more “generic” sense, such as one that can be used either for a given category of fact witnesses or a category such as co-employees in a sexual harassment case.
Contents of the Deposition Notebook
The deposition notebook is not some fancy, computerized volume that is to be put together by staff working on behalf of the lawyer. Rather, it should be assembled by the lawyer himself or herself. The following sections should be included in the deposition notebook (and they should be tabbed and indexed):
Section 1 - Statement of Goals. This is simply a statement in the form of some brief notes as to what you hope to accomplish in this deposition. For example, in an intersection collision case, your main objective with a given witness may be to merely establish that she was not physically positioned so as to be able to see the color of the traffic light. In most instances, you will have a number of things you want to accomplish, but never lose sight of your overall goals or objectives in the deposition; all too often, lawyers get bogged down in minutiae.
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Section 2 - The Deposition Outline. This section should contain a detailed outline of every item you need to cover in the deposition. In some instances, we have had outlines exceeding 100 pages, such as in the case of an expert engineer’s deposition in a product liability matter. Also, the outline must contain cross-references so you will know which exhibit to refer to when you are covering a particular area of questioning, etc.
Section 3 - Copies of Documents Relating to Witness’ Testimony. This would include such things as the witness’ curriculum vitae, correspondence authored by the witness, memos, “smoking gun” documents and more.
Section 4 - Copies of Transcripts of the Witness’ Testimony From Other Proceedings, Including Other Depositions.
Section 5 - Legal Research/Law. More often than not, counsel can anticipate certain types of objections that will arise during a deposition. Do the research in advance and have the applicable statute, case law decision, or other materials in the deposition notebook so that you will be able to refer to them if and when necessary, and so that you will be able to cite them into the record if and when necessary.
Section 6 - Miscellaneous.
It is absolutely impossible to over-prepare for a deposition. We have found year in and year out that the deposition notebook is of great assistance in helping the lawyer prepare, analyze and organize for the deposition. In addition, the deposition notebook, when viewed by your opposition from across the table, lets that lawyer know something about your high level of motivation and desire to eagerly represent your client. Use of the deposition notebook is only limited by the amount of creativity and innovation that you put into its assembly.
In 1988, Dennis Suplee and Diana Donaldson authored The Deposition Handbook, published by John Wiley & Sons, Inc. In the preface to the text, they put it so aptly when they state: “Depositions are the most important of the pretrial discovery tools, but their role in the pretrial process is sometimes taken for granted....Someone needs to speak up for depositions.” They further state that:
“...Of all the pretrial discovery tools, depositions require the greatest technical skills and can make the biggest difference in the outcome of a case. In evaluating the strength of a case for settlement purposes, litigators accord great weight to the per- formance during depositions of both their own and their opponent’s witnesses. And, if a case should go to trial, the deposition transcripts will usually be the lawyer’s most important resource for cross-examination.”
The preparation and assembly of your deposition notebooks from this point forward will greatly assist you in taking these depositions, and it will enhance the result you obtain for your clients in all further discovery and litigation.
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Step #4 - Seek victory in a deposition for your client and not for yourself.
All too often, lawyers go to a deposition with the belief that they must prove to the opposition that they are either smarter, or tougher, or stronger, or more aggressive than the opposition. The lawyer often lets his or her ego get in the way, forgetting about the real function and purpose of the particular deposition. I have often reviewed transcripts or learned about depositions where the lawyer taking the deposition actually “lost” a lot of ground in the deposition in terms of the value the deposition would have to the case and yet the same lawyer felt relatively good about the deposition because he was able to demonstrate to the other side - seemingly - that he was either more intimidating or more intellectually superior to the opposition. Yet the opponent in the deposition is the one who “won” in terms of the overall value the deposition had to the case. Never lose sight of the fact that the taking of a deposition is meant to help the client and the case.
Now, let me give you some specific examples:
a. Handle any objections you make in an ethical and professional manner, and in accordance with the law and the Rules of Civil Procedure. Make your objection by stating it clearly and then stop talking.
b. When the opposition makes an objection to one of your questions, move on after he or she has made the objection by either having the witness answer the question or by asking your next question. Don’t let the opposition get you off track by getting you into some lengthy debate or argument. Often, opposition objections are meant simply to distract you and to get you frazzled and rattled.
c. Work methodically with your questions in order to seek the information you need (even if it may appear that you are not the most brilliant attorney in the world).
d. Don’t ever let a witness get away with not responding directly to your question. Follow up relentlessly until your question has been answered.
e. Ask clear and concise questions and not questions with all kinds of double negatives or innuendos, etc.
f. Don’t give away or tip off your entire strategy to the other side merely to let them know how smart you are and what a great case you have.
Step #5 - Make sure that you have a specific and well-organized plan regarding the flow of the deposition. Getting yourself organized for the deposition is vital. Make sure that your plan is well thought out and in order. Here are some helpful hints:
a. As a part of your deposition outline, set forth the documents you intend to use and at which point in time you intend to use them. Make sure your documentary evidence for the deposition is prepared and that you have sufficient copies so as to be able to refer to them yourself and have the appropriate number of copies available for other people to refer to or have available to them.
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b. Make sure that your demonstrative evidence is well prepared and ready to go and that you have a plan as to precisely when you will use it and in what manner at the deposition.
c. Give due consideration for the court reporter and consider breaks for him or her at reasonable intervals.
d. Organize and plan for general breaks (during a lengthy deposition).
e. If there are preliminary matters that need to be discussed such as “stipulations,” make sure that this is handled at the beginning of the deposition.
Step #6 - Don’t be predictable. Most lawyers take depositions in a similar fashion as other lawyers. In personal injury and wrongful death cases, both defense lawyers and plaintiff’s lawyers tend to ask questions of particular types of witnesses in the same order and in the same general manner (and seemingly with the same strategy in mind). Your depositions will be of a higher quality and more helpful to your case if you stop being so predictable.
Let us assume that you are the plaintiff’s lawyer in a personal injury/automobile collision case. You are preparing to take the deposition of the doctor who has performed a defense exam at the request of defense counsel (or the insurance company). Typically, the plaintiff’s lawyer starts out in these depositions by covering areas in the following order: first, the doctor’s qualifications; second, how the IME got set up; third, well - you get the point! Consider the next time you depose the doctor who has done the defense exam by beginning with some questions perhaps in this order:
First question: Please state your full name for the record.
Second question: Isn’t is true, doctor, that in the last calendar year, you earned in excess of $800,000 performing defense exams?
Third question: Isn’t it true that approximately 65% of your practice now involves conducting defense exams?
Although it obviously is important for you to figure out what questions need to go in which particular order, it is simply a good strategy to not be predictable. Don’t ask questions in the same order and in the same way that all the other lawyers seem to day in and day out.
Step #7 - Get the book on the witness first. As you prepare for a deposition, obtain everything that you can on or about that particular witness before the deposition takes place. If the witness is an eyewitness to an intersection collision, obtain statements that the witness may have given to investigators or others. If the witness is an expert, obtain transcripts of testimony from other depositions or trial transcripts. Obtain articles or books written by or about the witness. Search for newspaper or magazine clippings and articles that may contain information about the witness or quotes from the witness given to reporters. Simply put: Obtain everything that you can regarding the witness in terms of information.
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Step #8 - Never make a deposition a Christmas gift party! Don’t unnecessarily give away “gifts” during a deposition. Do not stipulate to something that you do not have to stipulate to under the circumstances. Do not concede a point, or an issue or a position unless it is strategically good for the case, well thought out and absolutely necessary at the time. Don’t tip off the other side unnecessarily in terms of giving up something prematurely. Often, lawyers have such a difficult time with temptations in a deposition. In other words, the lawyer is so eager to let the other side know about “what a great case I have” that you give away gifts of information when it gives the other side time to fully defend against, or prepare for, the “gift” you have now given them.
Step #9 - Your persona should be that of a prepared, organized, authoritative and well- meaning advocate. It is true that some witnesses (and their attorneys) will arrive at a deposition thinking they can buffalo or outmaneuver the attorney who is taking the deposition either because the “taker” is unprepared, disorganized, lacking in knowledge, etc. And, yes - there are some lawyers who like to come across as “Columbo” and yet we all know the lawyer is really a fox in disguise with extraordinary intelligence. There are various exceptions. It takes all kinds and types. Nonetheless, in virtually all depositions, the lawyer who comes across as well-prepared, well- organized, authoritative and well-meaning has a tremendous advantage tactically in the deposition in terms of how other counsel and how witnesses respond to that lawyer. Here are some things to consider:
a. Arrive early.
b. Dress and talk and act authoritatively. Demonstrate your leadership skills!
c. Appear organized and be organized and well-structured.
d. Be and appear ethical, professional, sincere and well-meaning.
Some lawyers believe that the process of intimidation and yelling (or raising one’s voice a great deal) helps them in their depositions. This is because these lawyers are lacking in leadership ability and they are not articulate enough to control a situation or other personalities without trying to strike fear into the hearts of others. Sometimes the yelling and screaming and intimidation may work, but, more often than not, it backfires, if not during the deposition, then later in the case.
Step #10 - Ask questions knowing in advance what you intend to do with the answers once you get them. Don’t ask a lot of questions merely in a helter-skelter way so as to take up time and space on pages and just “get the darn thing over with.” Have in mind a clear thought as to what you intend to do with the answers once you get them and once the deposition is completed.
Some answers will assist you in gaining a general understanding of the case or as to the background of the witness. Some answers will assist you in defeating motions. Some answers are important in terms of jury persuasion. Keep in mind that judges are looking for questions and answers that are of “legal” significance. Such questions and answers in a deposition may well help you defeat a motion for a summary judgment. On the other hand, some of these questions that have legalize in them are seemingly of little value to a jury as jurors are looking for questions that begin
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with the words “who,” “what,” “where,” “why,” “when,” and “how.” The important question to the judge is: “Do you have an opinion based upon a reasonable degree of medical probability as to whether Janice has a permanent injury that was caused by this collision?” Jurors, on the other hand, are better assisted by the following question: “In your opinion, doctor, will Janice ever be able to work a printing press again?” Although all of us, as lawyers, will ask questions in varying ways and by placing adjectives and adverbs and nouns in different order, the point here is that you want to make sure that your questions in the deposition lead you to specific answers where you have an idea of what you intend to do with those answers once you get them.
Step #11 - Understand and learn how to effectively question and obtain information in depositions. This is perhaps the single most difficult area when it comes to taking depositions. You want an expert witness to concede a given point, but you simply cannot figure out how to get the concession! You want a particular witness to agree that she has made an inconsistent statement, but you simply can’t figure out how to get it done in the deposition! A witness in a deposition tells a blatant lie and yet somehow the witness is making it sound or seem truthful, and yet you don’t know how to effectively demonstrate that it is a knowingly false statement! The difficulty here is trying to determine how you, as an advocate, can strategically plan for, and then carry out, a deposition so as to effectively be able to ask the questions you want to ask and get the answers you want to get from a witness who should give you those answers. Here are some helpful hints (even though this is only minimally covering how to go about this dilemma):
a. Basic questions should get you basic information without too much difficulty. For example, when you are seeking background information on a person, they should know this information without having to refer to anything. If they don’t know the information, then you need to follow up with a series of questions asking them where the information might be located, and how they could go about getting the information and furnishing it to you.
For example, assume that you are asking a witness who has been in the military about the kind or type of discharge he had when he left active duty. You might be thinking it was under less than honorable conditions. You ask the witness where and when he was discharged, and he fudges. You ask the witness if he received an honorable discharge and he fudges. At that point, you know something is up! You therefore need to delve into this information and then ask questions to dig into the background of his military history; find out where he was residing when he was discharged; find out where he was stationed at the time of his discharge; find out what branch of the service he was in; etc., etc. You will learn enough information about this so that you can follow up after the deposition and get the information through the U.S. Government.
However, for purposes of the deposition itself, you want to continue with questions along the following lines: Do you have any information whatsoever that would lead you to conclude that you might have received a discharge under less than honorable conditions? Were you ever court-martialed while in the military? Did you receive any type of an administrative discharge? Did you ever get in trouble while you were in the military? Have you ever been turned down from a job because of the type of
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discharge you got when you left the military? The questions may go on for several minutes, but you want to delve into the subject in depth.
b. Be ever so patient as you question a witness, attempting to set the stage for a later opinion or impeachment or something else. Don’t jump at the ultimate question too fast. Here is what I mean. Assume that you are deposing an opposition expert and you want to prove the “authoritativeness” of a textbook that you will later use to impeach the witness. Some lawyers just jump right in and say, “Would you agree that Smith’s textbook on ‘ABC’ is authoritative?” The witness responds by simply saying, “No, I would not agree that it is authoritative.” Keep in mind that this expert has probably been to expert witness school and has learned that the word “authorita- tive” is a buzz word, and that he or she should simply say “no” to any question where the authoritativeness of a textbook comes up in a deposition (or at trial). The better approach is to use a series of many questions to demonstrate that this particular witness may well believe the author, a noted physician, to be a competent and reliable teacher or professor. The better approach is to get the witness to agree that he or she has even used the author’s textbook in his or her office practice, or in his or her teachings (at the medical school). Ultimately, you should reach a point where the witness has all but canonized the author and then the witness is in a position where it would be very difficult to now say that the work is not reliable and competent. Laying the foundation for impeachment with an authoritative work does not necessarily mean that the author has to agree that the work is, per se, “authoritative.” Other words tending to demonstrate authoritativeness can be used and those “other words” will be much more helpful to you as you effectively examine the witness in the deposition.
c. Additional examples will be discussed in depth at time of lecture.
Step #12 - The rule of never asking a question unless you know the answer is generally not applicable in a deposition (as a deposition is exactly where you want to find out about the unknown and the bad stuff). Don’t be afraid to go into uncharted territory in a deposition. Although it depends on the witness and the strategy with a particular witness, you want to find out as much information as you can in the deposition. You also want to know about the negatives of the case and any negative that the witness might have or possess, or be likely to discuss at the time of trial. [An exception to this might be an out-of-state deposition of an eyewitness or an expert.]
C. DIRECTIONS TO COURT REPORTER AT CONCLUSION OF DEPOSITION
Prior to going off the record in a deposition and at the conclusion of a deposition, it is best to give your directions to the court reporter regarding the following:
1. Timing as to when the transcript will be ready;
2. Whether original goes to a particular lawyer, or party, or court or other;
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3. Directions as to obtaining signature of deponent, where necessary;
4. Directions as to what you want in the way of specifics:
a. Copy of transcript?
b. Copy of condensed/travel transcript?
c. Computer disk/ASCII disk?
d. Copies of exhibits attached to your copy?
e. Other.
D. THE FOUR MAJOR ERRORS MADE BY LAWYERS THAT CAN HURT YOUR CASE, YOUR CLIENT AND YOUR REPUTATION AS A LAWYER IN HANDLING AND TAKING DEPOSITIONS
Error #1: Taking a deposition that you don’t need to take.
Error #2: Minimal or nonexistent preparation for the taking of the deposition.
Error #3: Allowing opposing counsel in the deposition to distract you, bother you, and get you off track with his or her comments or objections so that you lose focus and begin to play by your opponent’s rules in accordance with his or her game plan for the deposition.
Error #4: Lacking the preparation, know-how, or skill to ask the necessary and winning “follow-up questions” after you have asked the initial questions in any given area of inquiry.
E. CONCLUSION
A deposition is to a given case what part of the script is to a play. A deposition is “the essence” of a part of your case and the depositions all together in a given case make up what will most likely be the trial transcript. Prepare well! Brainstorm! Strategize! Organize! Do all of those things necessary to win for your client, and do them in an ethical and a professional manner.
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V. THE CONCEPT OF KNOWING, UNDERSTANDING, AND APPRECIATING THE FACT THAT WHEN YOU ARE IN A DEPOSITION YOU ARE “IN TRIAL”!
A. INTRODUCTION
Day in and day out, lawyers approach depositions as a perfunctory and “take-it-for-granted” aspect of handling a case and preparing a case. More often than not, there has been little in the way of true “cerebration”; preparation has been minimal at best; pre-made outlines and forms are used with lists of questions (instead of thinking through the specifically-tailored questions needed for a given deposition); astonishingly, most depositions are not taken as “videotape depositions”; and the list goes on and on. Part of the problem is that the “mindset” of most lawyers is that when a deposition is taken, it is merely a part of the discovery process. Somehow most lawyers are of a belief that because a particular proceeding is “a part of the discovery process,” then it is not really a part of the trial or likely to be at a trial. This is, at least in part, the downfall of most lawyers when it comes to preparing for and taking depositions – i.e., they fail to understand and appreciate that being “in a deposition” means you are “in trial.” Keep in mind the old adage: “As go the depositions, so goes the trial.” It is essential that you as the advocate consider that you are examining a witness or cross-examining a witness for the primary purpose of winning the case at trial and, thus, you must be thinking about the effect each and every question has or will have on the judge, the jury, and the appellate courts.
B. “GREAT PERSUADERS KNOW HOW TO IDENTIFY THE AUDIENCE”
Unfortunately, many lawyers think their “audience” is either the defense lawyer, or the insurance adjuster, or some manufacturing representative. This is a “false” belief! You as the advocate have but three “audiences” in every deposition:
Audience #1 – The presiding trial judge;
Audience #2 – The members of the jury;
Audience #3 – The members of your appellate courts.
Although it is, of course, true that most cases will settle and we cannot physically try every one of our cases – don’t “make” the defense lawyer or the adjuster your “audience” for purposes of the deposition. It is the judge and jury and appellate court you must persuade, and defense lawyers and adjusters know that is a fact. All too often, lawyers try to impress the defense lawyer or adjuster by demonstrating in a deposition who is smarter, who is tougher, who is clever, who is the best dressed, who is the sharpest, and so on and so forth. This matters little in the end if you are not “persuading” the judge, and jury, and appellate courts through the work you do in preparing for and taking (and defending) your depositions.
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C. THE IMPORTANCE OF FOCUS GROUPS AND MOCK TRIALS – EARLY ON
In order for you to truly appreciate what is important for the jury, you must think and brainstorm and cerebrate on an ongoing basis in each case. One means of assisting you in appreciating what the jurors will want and need to hear and learn is by conducting focus groups and mock trials in your cases. If you wait until a week or two or three before trial – it is generally too late and of little help. The preferred time is to conduct your initial focus groups before you even file suit. Regardless, it is important to at least “consider” conducting focus group studies and mock trials and other “juror research” at the earliest possible date after you file suit. This will not only help you in the trial itself, it will help you as you prepare for and conduct important aspects of discovery.
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VI. CROSS-EXAMINATION OF EXPERT WITNESS
A. PRIMARY GUIDING PRINCIPLE FOR EXAMINING WITNESSES IN DEPOSITIONS
The primary guiding principle for deposing witnesses in depositions is as follows:
“EXAMINE EACH WITNESS IN A DEPOSITION AS IF THERE ARE NO OPTIONS AVAILABLE OTHER THAN TO WIN YOUR CASE THROUGH THE EXAMINATION OF THIS PARTICULAR WITNESS IN THIS PARTICULAR DEPOSITION!”
B. DEPOSITION PREPARATION PRINCIPLES
Your preparation for a deposition must – in every instance – be:
1. enthusiastic; 2. exhausting/energy-draining; 3. destination-oriented; 4. journey-oriented – “step by step”; 5. autopsy-like as to witness’ position, data source, bias, character, other; 6. outlined – mapped out; 7. flexible; 8. adaptable; 9. “obstacle” or “road block” ready; 10. common-sense oriented.
Never think of a deposition as “routine.” If you are going to take a deposition, whether it be of a more favorable witness or of an adverse or problematic witness, never say as you are on your way to the deposition or as you are preparing for the deposition things like: “I’ll cross that bridge when I come to it,” or “Let’s just play it by ear,” or “Let’s just get over there and see what happens.” These are phrases of a nonpreparer.
C. “THREE-PRONGED FORK IN THE ROAD STRATEGY”
In cross-examining witnesses, whether it be in depositions or at trial, always be cognizant of the “three-pronged fork in the road strategy.” This strategy or philosophy goes basically as follows: In every deposition, it is 100% predictable that a given witness will answer only in any one of three ways on important points, namely:
Answer Option #1 – “YES!” Answer Option #2 – “NO!”
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Answer Option #3 – “I DON’T KNOW” or “I NEED MORE INFORMATION” or a response with some kind of a qualifier.
This means that you, as a trial advocate, can always prepare for these particular responses, knowing in advance you are going to get one of them. So as you prepare your outline for the deposition, always be ready with your follow-up questions if there is a “yes,” or a “no,” or one of the qualified responses. Your deposition question outline should include a mapping out of your strategy depending on what happens when you get one of the three responses.
D. “O.S.P.A.” EXERCISE
The term “strategy” has been bantered around by so many different people in so many different ways under so many different sets of circumstances that often we lose sight of the true meaning of the term “strategy.” Some people will say that the strategy of a team in the Super Bowl Game is “to put the ball in the end zone.” That is not strategy at all but merely an end result or goal. Others will say that the strategy in a real estate negotiation deal is to “sign the papers and wrap up the deal.” That is not a strategy at all but rather a destination at the end of a journey. Therefore, for us to begin this exercise as trial advocates, we must have a plain and straightforward definition or explanation of the term “strategy.” Accordingly, we will define “STRATEGY” as follows: Strategy comes in two parts – (a) the step-by-step logical, methodological, and analytical means by which one determines a course of specific action or actions to take or to avoid in order to defeat one’s opponent on a given issue, in a given battle, or in any other form of competition or combat; and (b) a positive approach combined with a negative approach (i.e. playing devil’s advocate) to putting into effect those actual steps that must be taken or avoided to defeat your opponent. “Strategy” is therefore not the end but rather the means to the end. Your strategy – simply put – is the way you figure out how in the world you are going to figure out a way to defeat an opponent in any given situation combined with figuring out all of the different ways your opponent is going to utilize to figure out a way to defeating you. Here is the problem – most trial advocates only take the first part of the approach…by figuring out the steps they need to take to defeat their opponent and ignore the logical analysis being conducted by the opponent as he or she figures out the steps to take or avoid to defeat you.
What this all means is that you, as a trial lawyer in the handling of every case, must do a complete and thorough, logical analysis and assessment regarding not only your own strategy but the predictable strategy that will be utilized by your opponent in his or her attempt to beat you and your client. The most effective and efficient way of accomplishing this is through what I refer to as the “O.S.P.A. model.” This, of course, refers to you conducting an “Opposition Strategy Prediction Assessment” in all of your cases and as to all issues and as to all aspects or parts of the trial.
The O.S.P.A. should be done with respect to all phases of the case, including basic pleadings, written discovery including the interrogatories and production requests and requests for admissions, depositions, matters pertaining to settlement, trial preparations, mediation, voir dire, opening statement, examination of witnesses, pretrial and trial motions, summation, jury instructions, and more. I will limit a sample approach to this “model” by simply going through an O.S.P.A. in one phase of a case or trial. In this instance, we will work on an O.S.P.A. regarding the
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opening statement to be given by opposing counsel – defense counsel – in a two-car motor vehicle collision where one vehicle rear-ends the other and where the plaintiff claims as his primary injury that of a herniated disc in the neck. The Opposition Strategy Prediction Assessment should be carried out as follows:
Step 1 – Who is the lawyer giving the opening statement? Is he bright or not so bright? Is she articulate? What are his physical characteristics? What are her vocal characteristics – loud or soft, tone of voice, characteristics of enunciation and pronunciation, and more? Is he emotional or calm? Does she demonstrate passion? Will he be low-key or more flamboyant? What is his track record in other cases in opening statements, and what are my assessments based on those transcripts and talking to other lawyers about him or her? How does he dress? What is her overall demeanor generally? Ethical or borderline ethical? Knowledgeable of the law and procedure or not? Once I have asked and answered all of these questions about the lawyer who will deliver the opening statement for the opposition, I can predict with a very high degree of accuracy how that lawyer is likely to act during opening statement and how that lawyer is likely to “deliver” the opening statement, regardless of the form and substance of what is being said. This, of course, will have a lot to do with how I approach the case; how I approach my opening statement; and even as to the jurors I may choose to strike from the panel. For example, if I know that my opponent is a more loud, boisterous, and flamboyant advocate, I may choose to keep a juror whom I believe will tend to dislike and distrust that type of a personality. When I have done my full assessment on this aspect of the O.S.P.A., I should know exactly what to expect and the way in which my opponent is likely to deliver his or her opening.
Step 2 – What is my opponent likely to say in the first 30 seconds of his or her opening? What impact words or language will be used? What catchy phrase will be used? What theme will be used?
Step 3 – What is my opponent likely to say when he talks about my client as a person? A plaintiff in a lawsuit? The client’s history of work ethic and character traits?
Step 4 – How and by what means will my opponent frame “the issues in the case”? What will he or she choose as “the issues in the case”? Why will my opponent choose these “issues” as the issues in the case? Why not others?
Step 5 – What demonstrative aids will my opponent use in opening statement on issues of fault? What demonstrative aids will my opponent use on issues relating to causation? What demonstrative aids will my opponent use on issues relating to damages? What other demonstrative aids might my opponent use on issues relating to affirmative defenses or other matters?
Step 6 - Will my opponent say anything about me as a person or a lawyer? If so, what will be said? Why?
Step 7 – What will my opponent do or say that will be legally objectionable during his or her opening statement? Should I object? Should I keep my mouth shut? Will I be overruled or sustained? What difference does it make?
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Step 8 – What “evidence” will my opponent refer to and discuss? What witnesses’ testimony or likely testimony will he discuss and why? What records or documentary evidence will he or she refer to and why? How will he do it? Why will he use these documents instead of others?
Step 9 – What clever or catchy phrases or terms or words will my opponent use to try to curry favor with the jury? Will he be dramatic? Will she be humorous?
Step 10 – What will my opponent do about issues of credibility? Will he talk about the defense examiner and try to demonstrate in opening that my client is not truthful or is exaggerating or malingering? Will he try to imply or infer those things without coming right out and saying it? How will he do it? Why will he do it? Why will she do it at this point in the opening?
Step 11 – What will she say about my opening statement? Why? What good could it possibly do her?
Step 12 – What will my opponent employ to try to gain an advantage in opening statement? Will it be an attack on my client’s credibility due to prior claims? Will it be an attack on credibility due to inconsistent statements given to doctors about neck pain complaints? Will my opponent say these things in a straightforward and somewhat friendly manner or in a more aggressive and adversarial manner?
Step 13 - What will my opponent try to do later in the proceedings with what has been said in the openings? Why?
Step 14 – Write or dictate your opponent’s opening statement covering, at a minimum, the following items as part of your outline:
a. Opening remarks – first 30 seconds; b. Opponent’s theme of case; c. Opponent’s theory of liability; d. Opponent’s attack on plaintiff’s credibility; e. Opponent’s attack on fault; f. Opponent’s attack on legal causation; g. Opponent’s attack on medical causation; h. Opponent’s attack on damages (going through each one of the elements of damages); i. “The issues” according to my opponent; j. The law upon which my opponent will rely (even though technically not a part of the opening); k. The evidence upon which my opponent will rely, including witnesses’ testimony, documentary evidence; l. Demonstrative aids; m. Catchy phrases or clever sayings; n. The closing – (a) an emotional close to the opening; (b) a very “matter of fact” close to the opening.
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Once you have completed the above O.S.P.A. in a disciplined manner, working intensely to cerebrate on all of these steps, you will indeed be able to predict the most highly likely opening statement that your opponent can or will deliver. Once you have completed this exercise, it will assist you immensely in developing various parts of your own strategy for those aspects of the trial that will take place both before and after the delivery of your opponent’s opening statement. Do this with every phase of the case and trial, and you will have a marked advantage or edge.
E. INCORPORATE THE CONCEPT OF “COACHING” INTO YOUR EXAMINATION OF WITNESSES IN DEPOSITIONS
Unfortunately, many trial advocates start taking depositions via a particular method or system and continue to do that throughout their entire career. The problem is that these systems or methods tend to be minimally flexible, minimally adaptable, and often wrong, antiquated, ineffective, and inefficient. It can generally be said that if you are taking a deposition today the same way that you took a deposition five years ago, then shame on you! As we move forward in our careers, we need to progress and get better and learn how to be more effective and efficient in the things that we do. Certainly, this includes the manner in which we prepare for and take and utilize depositions.
The concept of “coaching” deals with these changes or adjustments in our methodology. Just like a coach teaches an athlete how to improve his or her technique or method, so, too, we must coach ourselves and coach one another to improve upon the way we prepare for and take depositions.
As you coach yourself and your partners and others, make sure that you always depose witnesses to gain information that will:
a. support your theme; b. support your theory; c. support your momentum; d. support your case/client image; e. support your attack on the opponent’s case or witnesses.
F. SOURCES OF INFORMATION RE DEPOSITION QUESTION LISTS AND STRATEGY
It is recommended that you consider purchasing for your firm or office the following publications:
a. Soft-cover book entitled Depositions - Procedure, Strategy and Technique, published by West Publishing Company, and written by Paul Lisnek and Michael Kaufman;
b. Various sets of publications by Clark/Boardman/Callaghan Publishing Company entitled "Pattern Discovery Checklists." These are published in areas including
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product liability, medical malpractice, automobile litigation, premises liability and others;
c. Book entitled The Deposition Handbook, Second Edition, published by John Wiley & Sons, Inc., authored by Dennis Suplee and Diana Donaldson.
d. Book entitled The Deposition Field Manual, published by Professional Education Systems, Inc. (PESI) Publishing Company, 2002, authored by John F. Romano, West Palm Beach, Florida.
G. FIVE “SILVER BULLET” QUESTIONS FOR OPPOSING EXPERTS
Can you explain the overall goal of your silver bullet questions?
They usually either give the answers you want so that you can use those answers in front of a jury or they lead you to information that you can later develop and use during trial. They also help you settle cases in your client’s favor because the opposition sees what’s happening and understands that their risks are, little by little, increasing.
The risks increase because these questions generally:
• Establish that an expert is biased. • Put a wall around an expert’s testimony. • Weaken the credibility of the opposition’s expert. • Strengthen the credibility of your own expert and/or police witnesses on your side.
What are the five questions?
1. What do you perceive as your purpose and function in this case?
2. Assume your opinion is wrong or invalid. What steps would you go through to analyze and assess the opinion to find your error?
3. What further work do you intend to do and what further work have you been asked to do for this case?
4. Do you have any criticism of the police or of my expert(s) in this case in terms of their methodology or techniques?
5. Have you made any credibility judgments as part of your analysis in this case?
Could you explain what the purpose of each question is and give some examples of how they’ve helped you win cases or settle cases in your favor?
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Absolutely. Let’s start with, “What do you perceive as your purpose and function in this case?” When I ask this question, I’m trying to:
• Establish the expert’s bias; and • Limit the scope of his or her testimony.
If, for example, I file a personal injury case in which my client has a lower back injury from an auto wreck, the insurance company’s lawyers will hire a doctor to examine my client. From the start, that doctor knows that his or her role is to minimize the plaintiff’s injuries – and he or she will do this. Yet when I ask about his or her purpose in the case, a typical response by a defense examiner is, “My function in this case is to give an independent and objective evaluation of the plaintiff’s injuries.”
So I then go on to explore what the doctor alleges is an “independent and objective” evaluation by asking questions such as: • Isn’t it true, doctor, that in the last calendar year you earned in excess of $800,000 performing defense exams?; or • Isn’t it true that approximately 65% of your practice now involves conducting defense exams?
Once I’ve established that the opposing expert is not objective after all, I move on to putting a wall around that doctor’s testimony. Let’s say it’s a medical malpractice case and a doctor says, “I’m here to testify on the issue of causation only.” I will then ask something like, “So you are not here to testify on whether or not there was a breach of the standard of care?”
The response I typically get is, “That’s correct, Mr. Romano.” This means that I’ve eliminated that expert as a witness on the issue of the standard of care and effectively narrowed the scope of his testimony.
What are you trying to do with your second question? (Assume your opinion is wrong or invalid. What steps would you go through to analyze and assess the opinion to find out your error?)
First of all, I should tell you that lawyers will virtually always get an objection to this question in deposition, but the witness must answer the question regardless.
With this question, I’m aiming to establish the errors in an expert’s analysis: I have yet to see an expert witness in a deposition go through the same steps in responding to this question that he originally went through in his initial assessment.
Could you give an example of how you exposed the flaws in an expert’s analysis by using this question?
Sure. I recently deposed an engineering expert in a product liability case in which a defective mountain bike came apart when my client rode over a 4-inch curb. When the bike came apart, my client catapulted into the air, landed on his head and ended up with a brain injury.
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After the engineer testified that the bike wasn’t defective due to manufacturing, I asked him to go through the steps which led him to that conclusion. He spent an hour or two doing that.
Then I said, “Sir, I’d like you to assume that your opinion turns out to be wrong and that it’s true that the welds were inadequate or ineffective. Now that you assume that your opinion is wrong, take me back through all of the steps you need to go through in order to figure out where you went wrong.”
The witness spent four hours going through those steps – more than twice as long as it took him to make his original conclusion. Because he was much more thorough when assuming his opinion was wrong, I was able to show that he didn’t go from A to Z in establishing his original opinion. This, in turn, showed his bias for the bike manufacturer.
In your third question – (What further work do you intend to do or have you been asked to do for the case?) – are you attempting to establish that an opposing witness is biased?
No. What I’m trying to demonstrate is that an expert has prematurely arrived at an opinion when he still needs to do more evaluation.
For example, I recently had a case in which my client, a back seat passenger in an auto wreck, suffered a severe knee injury from the accident. She wasn’t wearing her seatbelt at the time of the accident, but we were arguing that whether or not she had her seatbelt on was irrelevant because her knee was only two to three inches away from the rear of the passenger seat.
The defense’s accident reconstruction expert testified that if she had been wearing her seatbelt, she wouldn’t have suffered a knee injury. But when I asked the expert if he intended to do any further work on the case, he said he wanted to:
• Measure the distance between the back seat of the car and the passenger seat with someone of the plaintiff’s height and weight; and • Find the weight of both the plaintiff’s and the defendant’s vehicles.
I then asked the expert if he considered those additional factors to be important ones to consider in arriving at a final opinion. He answered “yes,” and I was able to show that his opinion was flawed because it relied on insufficient data.
Does this question work particularly well in personal injury cases?
Yes, but it can work in almost any kind of case. I’ve used it is everything from criminal cases to business tort suits.
Let’s move on to your fourth silver bullet question. (Do you have any criticism of the police or of my experts in this case in terms of their methodology or techniques?) What are you attempting to prove when you ask this?
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The purpose of this question is to build the credibility of my expert or a police officer that I intend to put on the stand.
In a recent vehicular homicide case I tried in Fort Lauderdale, the defense was implying that the police officer could have done a better job in investigating the homicide. I was arguing that the police officer did an excellent job, and during deposition I asked one of their experts if he had any criticism of the officer’s investigation.
That expert said, “No” – and in this case what that “no” meant was that they couldn’t argue anything but that the police officer had done an excellent job at the scene.
That helped me position the case. Originally, it was going to trial on the issues of both liability and damages; however, because their expert did not fault the police, they ended up admitting liability and the case was tried on damages only.
What are you aiming to prove when you ask your fifth silver bullet question? (Have you made any credibility judgments as part of your analysis in this case?)
Again, I am trying to establish that an opposing expert is biased towards his or her side.
The simple truth is that most experts make credibility judgments. If the witness says that he hasn’t, it will be very difficult for him to explain a number of his conclusions or findings without conceding that he made credibility judgments in order to come to those conclusions. On the other hand, when the witness admits to making credibility judgments – especially about your client – you have an opportunity to explore them in detail during deposition.
For example, I had a personal injury case for which the defense hired a doctor to examine my client. In his report, the doctor wrote that the plaintiff was exaggerating her symptoms solely for the purpose of secondary gain. That meant that the doctor had chosen to attack my client’s credibility based on his own credibility judgment, when he should have been looking at medical tests and diagnostic studies in establishing his opinion.
That case settled in our favor for $340,000.
Should you ask these five silver bullet questions in the order you just presented them, or should you mix them up?
Although it obviously is important for you to figure out what questions need to go in which particular order, it’s a good strategy to not be predictable. Don’t ask questions in the same order and in the same way.
Do most attorneys use questions similar to these when deposing opposing experts?
No, they typically don’t.
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Lawyers generally have problems in doing the right thing in deposition. I continue to hear lawyers say things such as “We’ll get over there and play it by ear” and “Well, let’s just see how it goes” as they are about to go into a deposition. These types of remarks mean that an attorney isn’t prepared and doesn’t have a clear strategy and a clear set of goals in mind for taking the deposition.
Why do you think this is?
Lawyers commonly make the mistake of thinking that a particular deposition is less important than other, “more important” depositions in their case. But the trial advocate must consider every deposition as critical to the case. This is true even when, for example, someone is only being deposed to lay a foundation for a single piece of evidence.
Also, too many lawyers have the nonchalant attitude that they’ve taken 200 or 300 depositions during their career – they therefore think it’s okay to shoot from the hip and go into depositions without properly preparing for them.
And it’s not okay because there is no such thing as a run-of-the-mill deposition.
H. DEPOSITION OF DEFENDANT’S EXPERT WITNESSES - GENERIC QUESTIONS
1. What were you hired to do?
a. How was this determined?
2. Materials provided to you
- Why not others? - Why these? - What else would you have liked to have? - Why? - What else did you ask for? - Why? - Who did you talk to about what was provided to you?
3. Your initial impression once you spoke with attorney
4. What do you perceive as your purpose and function in case?
5. Your goals
6. Now take us through every single step you took in doing work in this case.
7. Who worked with you on this case?
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Details
8. What opinions have you arrived at regarding this case?
List each opinion.
a. As to each opinion, tell me:
(1) Basis of opinion (2) How you arrived at that opinion
9. Assume your opinion is wrong or invalid, what steps would you go through to analyze and assess the opinion to find your error?
10. Notes
11. Reports
12. Who did you report your findings to?
- Make any changes in your opinions
13. Further work you:
a. Intend to do b. Have been asked to do
14. Demonstrative evidence
a. You usually use b. You believe you will create for this case
15. Tools you used
16. Photos
17. Video
18. All measurements you took [i.e. for the deposition of someone like an accident reconstruction expert] [or ask about any and all calculations and numbers should expert be economist, accountant, etc.]
19. Pay
20. Relationship with defendant firm
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21. C.V./background
22. Other cases [see Internet]
Depo
Trial
23. Make expert define all terms
24. Expert’s criticism of:
a. Police b. Plaintiff’s experts and their analysis techniques c. Others
25. Have you made any credibility judgments as a part of your analysis in this case?
I. CONCLUSION
A deposition is to a given case what part of the script is to a play. A deposition is “the essence” of a part of your case and the depositions all together in a given case make up what will most likely be the trial transcript. Prepare well! Brainstorm! Strategize! Organize! Do all of those things necessary to win for your client, and do them in an ethical and a professional manner.
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