Cross-Examination Favorites

Effective cross-examination requires experience.  I have suggested that twenty-five jury trials represent a minimum measure of the experience that is necessary.  Twenty five jury trials, of course, take time.  How can experience be accelerated?  There is something you can do to condense the process of acquiring the necessary eperience.  Even if you have the experience, I think it can be helpful, even to an older, mature trial lawyer to do as much.

In one word, read.  I don't mean read law.  There is too much law as it is.  Most of it better left unread.  But there is a small library of books about trial lawyers, trial judges, and trials.  Most of these books are contemptible as literature, but I recomment them as sources of vicarious experience.

Irving Younger, "The Art of Cross-Examination" at 32 (ABA 1975).  Please leave your favorite books or websites that deal with cross-examination, or trial tactics in general, in the comments section.

Comments

[Skelly]

Cross-Examination: Science and Techniques , 2nd ed., by Larry Pozner and Roger Dodd

Trial Techniques, by Thomas A. Mauet

Evidentiary Foundations, by Edward J. Imwinkelried

[Richard Ames]

Telling a young lawyer today that he'll need 25 jury trial to get proficient at what he does is like telling him he's going die at 40. The idea is both ridiculous and demorilizing. Of course, the excerpt quoted was written in 1975.

[Norm Pattis]

The requirement for experience doesn't change even if the practice has for most firms. I try 10 to fifteen cases to a jury year in and year out and have for more than a decade. Most are criminal and 1983 cases. I think Younger is right, and that we need to be prepared to take risks to get experience.

[Mahan Atma]

1) Lead, lead, lead. NEVER ask an open-ended question, and never ask a question you don't know the answer to.

2) Take little bites: ONE fact per question. If your question has more than 15-20 words, break it up into a series of smaller questions. Do this, and your chances of getting surprised are much lower.

3) Make sure you know how to use the paperwork against the witness. Lawyers screw this up constantly. It's a lot harder than it looks, e.g. when an experienced trial lawyer does it right.

4) Preparation is KEY. Have all your questions neatly arranged and typed in a large font, and kept in a well-organized, tabbed-out binder. Have all the documents clearly labeled and accessible, immediately at your fingertips. Know where in the document you need to go for a piece of information. This is also much harder than it looks.

[Mike]

Telling a young lawyer today that he'll need 25 jury trial to get proficient at what he does is like telling him he's going die at 40.

Mr. Ames: I'm not sure your analogy holds. The reason people are living longer is due to scientific advances. What advances have ocurred that would accelerate trial experience? If there's a "virtual reality trial" game, then please, let me know where I can buy it! ;^>

In any event, don't be demoralized. Mr. Younger encouraged young lawyers to seek vicarious experience. Hence, the reason for my post. Also, to me, the 25-trials requirement is inspiring -- It gives me a goal.

[karl]

There is one book and one book only for the mechanics of cross, Larry Pozner's book. I carry it around like the holy bible as do many other lawyers in my town. With that said, take his "cross is life" approach with a grain of salt.

I would also recommend strongly writing out the entire of your cross on computer and "borrowing" cross outlines and questions from lawyers who have been around the block a few times. If your cross is on computer it is easier to go back and tinker with it at a later time to perfect it (and remember, you may well cross cops on things like observed drug sales dozens of times in your life if you a crim def lawyer)

Look at websites that have trial transcripts on them, read them, then reread them.

Read Spence (everyone of his books), see 12 Angry Men on Broadway (or video if you don't live near NYC), and don't read too much appellate law.

Finally, remember to test your theories of cross with "a test juror" or two.

With all that said, you might get moderately competent in 12-15 felony jury trials rather than 25.

- k

[moe.levine]

I was linked to your site, but I cannot imagine why.

You write, "Effective cross-examination requires experience. I have suggested that twenty-five jury trials represent a minimum measure of the experience that is necessary. Twenty five jury trials, of course, take time."

What a silly statement. Lawyers bright enough to be effective trial lawyers are effective at cross examination from the outset. Lawyers lacking in talent, like the author, will never be effective.

If the rule were correct, why does no one hire AssistantUSA's and Federal Public Defenders. Both offices are chock full of people with more than 25 trials, whose experience counts for nothing.

What 25 trials will do for an EBWilliams or Spence is to hone their skills, but if you have nothing to hone . . .