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 PAGE 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); 1 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. 2 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. 3 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.