Secrets of Cross-Examination

(Editor’s Note: Litigation is published by The Journal of The Section of Litigation, American Bar Association. This volume was subtitled “Secrets.”)

There are many secrets of fly fishing, but the essence of each of them is to listen to your instincts: They become more reliable each time you cast. Lay your line across the water as gently as spun silk, with the fly on the end of your tippet floating to rest near the trout. When you sense that he has struck, set the hook and let him run; wear him out and bring him to shore. If you miss that moment, the fish, most likely, will be gone forever.

So it is with cross-examination. There are many secrets, but the essence of each is to listen to your instincts, setting your hook at just the right moment. That “right moment” may announce itself with no more than the slightest word or nod from the witness, like the delicate nibble of a rainbow trout at the end of your line. When it happens, set the hook, wear him out, and reel him in. The witness, and often the verdict, will be yours.

No one is born The Complete Angler or The Master Cross Examiner; instincts have to be honed first. The best way to learn to cross-examine is to watch good lawyers in action, copying whatever seems effective. Then, once you master the fundamental rules, the leap to skilled cross-examiner can be a short one, if you take as many depositions and try as many cases as you can.

Once you begin to get comfortable in the courtroom, infuse your cross with your self. If you are funny, be funny. If you are smart, be smart. If you are neither, consider the judiciary. (Author’s note: Just kidding. It was a joke. Honestly. A terrible joke, now that I think of it. Just awful. Really.)

Perfecting cross-examination is an elusive goal. It is all but impossible to control every witness you face. Once the rules become a part of you, however, cross becomes instinctive, and you will win more cases out of the mouths of adverse witnesses than you ever dreamt possible.

Many fundamentals of cross-examination are anything but secret. In fact, whenever I attend or participate in a CLE lecture on cross-examination, I am struck by the universality of the rules, no matter how they are put. They work in civil cases and criminal prosecutions. They work for the plaintiffs’ lawyers, prosecutors, and defense counsel. You probably know most of them well:

1. Draft jury charges before you begin questioning the first witness at a deposition or pretrial hearing. That way, your questions and the answers will contain the very words and concepts the jury will use to decide the case.

2. Take destructive depositions on videotape whenever possible. In a television age, playing them at trial can be deadly.

3. Anticipate answers to every question that you must ask. Then formulate your follow-up: What do I ask if the witness answers “yes”? What if she answers “no”? And, most difficult, should I ask anything at all?

4. Never bury your lead. Come out smoking.

5. Ask questions to which there is virtually no responsive answer but “yes,” “no,” or “I don’t know.” This creates controlled cross, driving the witness to your conclusions.

6. Listen, think about, and analyze what the witness actually says. The more you listen, the calmer and more effective you will become.

7. Never laminate your cross. Set aside your notes and review them as you near the end of questioning. The relevant questions are inside you if you have prepared properly.

8. Take advantage of confused, implausible, or non-responsive answers. Testimony volunteered or invented under the pressure of cross-examination can lead to devastating follow up, often allowing you to demonstrate on the spot that the witness is evasive or lying.

9. Use prior statements — especially depositions — to gore, not merely to impeach, the witness.

10. Be a bulldog. No matter the number of objections from opposing counsel, return to your subject and get your answer. This is a delicate area, and it often requires a great deal of experience. But if the judge sustains the objection and the answer is important to your case, you must find another way to put the question without offending her ruling.

11. Know more than the witness — more about the facts, more about the law, and, in the case of experts, more about the subject — at least for the period of time they testify. Think of it: Once the trial is over, all that you have gleaned from Fundamentals of Laparoscopic Surgery can be disgorged forever from your mind. The losing doctor, on the other hand, has to spend the rest of his life plunging the laparoscope into places that can best be described as uninviting.

12. Infuse your cross with closing argument. Don’t just ask the defendant driver if he slowed down before he hit your client. Give the question context and passion: “Isn’t it a fact that as Sandy drove toward her death, as she neared the corner where you struck and killed her, as she became clearly visible, you never slowed down to avoid her?”

As every seasoned trial lawyer will tell you, the rules are not written in stone. Nor is this list exhaustive: It is meant to stimulate your thinking and to provide a framework for your own evolving style of cross-examination.

The secret? There is no magic. Anyone who learns the rules can become a master of the art of cross-examination.

My own perspective on cross-examination has recently broadened. In fact, since last we spoke (D. Berg, Blind Cross-Examination, 17 Litigation, No.1, at 12 (Fall 1990)), I have begun trying civil cases of all kinds, primarily plaintiffs’ personal injury. Having come from the relatively pristine world of criminal law (where all that is at stake is the defendant’s liberty), I admit that I was initially surprised by the, shall we say, creativity of testimony in many civil cases. So far, I have seen roughly three categories of such creative testimony:

1. The “It’s My Story and I’m Sticking To It” response;

2. The “I’m the Expert Ol’ Buddy, and You’re Not” rejoinder (a favorite of physicians); and

3. The “My Inability to Remember a Single Thing You’ve Asked About is Attributable to Carpal Tunnel Syndrome or Too Much Moo Goo Gai Pan” reply, which as you may know, also topped the country and western charts for 41 consecutive weeks.

I like to call the witnesses who testify this way “Walking Punitives.” They come to life in the examples below, taken from a few of my own cases and one — the Howard Hughes probate case — borrowed from my friend, Wayne Fisher. Each of them gives a glimpse into a secret of cross-examination.

The first example illustrates that the taboo against open-ended questions can sometimes be ignored. It comes from the first civil case I tried — a wrongful death action on behalf of the family of a young mother killed at a grade crossing.

For those who have not had the experience, railroads try lawsuits with a kind of nineteenth century robber baron mentality. If one is struck by a train, one is pronounced not only dead, but also unerringly stupid, by company executives. All accidents, they reason, are the fault of the motorist — even if the railroad has parked a row of tank cars a half-mile-long on one set of tracks, making it impossible for approaching drivers to see oncoming locomotives on the next set of tracks. In fact, that is exactly what happened in the case of my client, Sharon Elaine Lemon, who died at night at a four-track crossing without signals in Sweeney, Texas, south of Houston.

During his deposition, the conductor denied that the crossing would have benefitted from an automatic warning device such as a gate or flashing light. He insisted that he did not even know what made a crossing safe, much less the effect of replacing a passive crossbuck with an automatic signal. But he was a conductor. How could he legitimately claim not to know anything about safety at a grade crossing? My instincts told me that the witness was about to rise to the bait.

The secret of making use of such dubious testimony is to nominate the witness to be an expert. Juries often listen more attentively to the conductor who rides the rails than the draftsman who designs them. Pressed, and perhaps flattered, the conductor acknowledged his 21 years of experience, his attendance at innumerable safety meetings, and his substantial participation in community projects, many of them to encourage drivers to stop for automatic gates. With that as background, he virtually had to admit that he was concerned, for safety reasons, about the nature of the warning devices at each crossing he passed on his route. His testimony that he did not understand what made crossings safe began to sound silly.

The hook set, it was time to tire the witness out — this time, with a series of questions, including one that was completely open-ended. Before I did that, though, I needed to have him acknowledge (1) that there was a safety rule or practice that should have been followed; and (2) that it was not followed. Specifically, that meant having the conductor admit (1) that the railroad’s own operating rules required that train cars be parked 250 feet from a grade crossing; and (2) that the cars in this case were left only 105 feet away — facts he readily conceded, once shown the railroad’s own diagram of the accident scene. Then he agreed that the rule was important or it would not have been in the operating manual. Now, the open-ended question:

Q. Tell us why the rule is important.
A. It gives the motorist and the train crew an early opportunity to see each other.

This form of “friendly fire,” coaxing the witness into admitting that a defendant has broken an important safety rule, applies universally, albeit in varying forms.

Ask the doctor whose missed diagnosis resulted from his failure to do a simple blood test: “Isn’t taking a complete blood count — just pricking a finger to draw blood — important in diagnosing appendicitis?” There is no credible answer but “yes” and no better follow up than: “Why is it important?” His answer can only underscore his failure to have performed the test. Ask the gun manufacturer whose semiautomatic weapon was negligently fired while being unloaded and killed a bystander, “Aren’t thorough instructions on unloading a semiautomatic weapon important?” When he answers affirmatively, as he must, ask him why. Asking open-ended questions becomes an instinctive and effective tool, especially when faced with an expert who has become adversarial during deposition or trial.

Once the admission of importance is made, the witness either has to admit the ultimate issues of your case or lie with no chance of being believed. In my case, the conductor tried valiantly to spit the hook.

Q. Of course, the tank cars blocked your view of Mrs. Lemon as she approached the crossing?
A. I could see the crossing clearly.
Q. You are not telling this jury that you saw the crossing or Mrs. Lemon before your train came out from behind those parked tank cars, are you?
A. I am telling you that when we came out from behind the tank cars, I saw her clearly.
Q. Exactly my point. If the 250 foot rule had been followed, you would have seen her sooner, much further up the track?
A. Yes, I suppose.
Q. And, to be fair, if those tank cars had been shoved back, she would have had the opportunity to see the train sooner?
A. Stands to reason.
Q. If those tank cars had been moved 250 feet back, which you agree would have allowed you to see her sooner, you would have been able to brake to a stop or slow down sufficiently to let her pass?
A. No way that was going to happen. We were going too fast.
Q. Well, will you agree that had she been able to see you sooner, she would have had more time to stop?
A. There was no way she was going to stop, not the way she was driving.
Q. As you barreled out from behind that parked set of tank cars, as she came into your view only three seconds from her death, it never even occurred to you to slow down, did it?
A. Never. She didn’t stop at the crossbuck, anyway. I couldn’t stop, and she was going straight through the crossing, regardless.

It was clear that the conductor, like his entire crew, was wed to the same untenable testimony — blaming the accident completely on Mrs. Lemon. Shifting gears, I asked if his experience allowed him to agree or disagree with the (obvious) proposition that automatic signals reduced death and injuries at crossings. He answered: “We still have accidents at crossings.” I followed up:

Q. Doesn’t it stand to reason that a gate that blocks a car from coming across the tracks makes a crossing safer?
A. Not necessarily. People run those gates all the time. There it was. The old “It’s My Story and I’m Sticking To It” response. And the next secret: If the witness resists the obvious, ride with his lies. All the way to punitive damages.
Q. Well, Mr. Conductor, assuming those tank cars had actually been 250 feet from the crossing, as your company’s rules require, and further, that there was an automatic gate, with flashing lights, and, further, that Mrs. Lemon actually saw the gates and actually stopped at the crossing, would that have made the crossing safer?
A. Not if she tried to run the gate. Happens all the time.
Q. Well, will you admit even this much: If you had stopped the train, put a flagman out, set some flares and warned her that the train was coming, that would have made the crossing safer for her?
A. Not necessarily. Besides, we don’t use flagmen at that crossing.
Q. All right. Let me try this. What if you had stopped the train, gotten off, jumped down right there at the crossing, and personally escorted her across the tracks? Would that have been safer for Mrs. Lemon?

The engineer stopped, stared for a moment, and, apparently without embarrassment answered “No.”

The breakman’s trial testimony also deserves special mention, if for no other reason than he appeared at a trial in a black cape and a neckful of gold-encrusted chains. But his testimony itself was also notable.

THE PERIPATETIC BRAKEMAN

The night of the collision, he told the railroad investigator that he had been on the lead engine at the time of the accident and that he saw Mrs. Lemon fifty feet behind the crossbuck. During his deposition, he testified that he was on the third engine, zipping up his pants at the time he first saw her, which he now said was right at the crossbuck. At trial, when confronted with the physical impossibility of having seen Mrs. Lemon from the third engine with his view blocked by the parked train cars, the brakeman turned somberly to the jury and announced that he had “reshuffled his thinking.” Now he remembered that he was actually on the second engine pulling on some overalls at the time of the accident and that he first saw Mrs. Lemon when she was already on the tracks. As the peripatetic brakeman slithered down from the stand, even casual observers noted that the jury, once polite and attentive, had grown surly.

Somewhere along the way it was relayed to me (and I have no idea if this is true), that the railroad would not settle the case because one of its executives believed that no black family could get a large award from a jury in Angleton — the South Texas town where the case was tried. In fact, the jury was all white, but was dominated by public school employees, including three teachers. It took them a greater part of a day to return $2.2 million in actual and $10 million in punitive damages, disabusing the railroad, one would hope, of any notions about black families and juries in Angleton, Texas. The verdict, recently affirmed by the Court of Appeals, is currently on application for writ of error to the Texas Supreme Court.

The second example — this one borrowed from my friend Wayne Fisher — illustrates the value of hard work and thorough investigation, especially in the hands of a skilled cross-examiner. And it demonstrates something else: Older lawyers don’t really mean it when they say they yearn for the days of trial ambush — what they really yearn for is the days when they did the ambushing. Spring some secret testimony on one of those, back-when-I-was-young-we-didn’t-even-have-briefcases, bet-the-ranch litigators and they go off whining to the judge, complaining bitterly that opposing counsel is not working and playing nicely with others. In fact, that’s exactly what Fisher’s opponents did about ten years ago.

DEFENDING HOWARD’S WILL

When Howard Hughe’s died, Fisher was retained to represent his estate against a parade of obviously phony wills. The one exception was witnessed by two seemingly credible Californians — Harold Burton (not his real name), a successful businessman, and Frank Johnson (not his real name either), a well-regarded Los Angeles physician. The will was drawn on stationery from the Beverly Hills Hotel, where Hughes had lived. Subjected to testing, the paper and ink proved to be of proper vintage. The handwriting seemed genuine.

The will left 80 percent of Hughes’s billion-dollar estate to charitable organizations, but the balance, at least a hundred million dollars, was bequeathed to a mining company controlled by the secretary of the now-deceased lawyer who had drafted the will. If Fisher was unable to defeat the claim, Hughes’s Houston relatives would lose hundreds of millions of dollars and control of his charitable bequests.

Some weeks before Burton’s deposition, Fisher found a deposition from an unrealated lawsuit filed years before, in which Burton flatly denied having any financial dealings with Dr. Johnson. Searching land records across California, he also found notes, deeds, and mortgages signed by both men. Fisher had found the secret he needed to win the case.

Anyone could have found the information, of course. But having an instinct for a witness’s jugular — not merely impeaching, but destroying his testimony — was a different matter.

Surrounded by a team of probate lawyers from around the country, Fisher began Burton’s videotaped deposition by asking a series of questions showing he knew a lot about the man: You are a 1947 graduate of UCLA with a major in geology? Your house is located at 3576 Stony Brook Road here in Los Angeles? You were married 36 years ago on November 5, 1947? You and your wife separated for 90 days beginning September 1964? You moved into your brother’s house in the San Fernando Valley during that entire period? You have three children, ages 23, 27, and 34? Your youngest son works at HiTech Industries as a program manager? You own 22 percent of the outstanding shares of that company?

The worried witness could only answer “yes” to every question. The lawyers fell silent. The camera rolled.

Fisher continued. “Mr. Burton, do you understand the nature of an oath?” The witness harumphed that indeed he did. “Do you understand that there are civil and criminal penalties for lying under oath?” Of course he did. “Mr. Burton,” Fisher continued, “I don’t think you do.”

There was a sudden gnashing of teeth among the assembled lawyers. Under the table, cordovan soles squeaked their concern. They had gotten a glimpse of Fisher’s dark side, which emerges only when Schubert is performed badly or he intends to eviscerate a witness: “Mr. Burton,” he continued, “within 60 seconds you are going to lie under oath and then I am going to demonstrate to you what happens when you lie under oath. We really ought to start right now.”

“Have you ever had financial dealings with Dr. Johnson?” The witness stammered a bit, then stalled. Finally he murmured, “Well, no, no.”

“See, Harold — do you mind if I call you Harold? — that only took about 28 seconds and you have already lied. Let me hand you these notes and deeds and mortgages and after you review them carefully, I want you to look into that camera and tell that judge and jury down in Houston, Texas, that you lied under oath.”

A newly pensive Harold Burton busied himself for several minutes, rustling papers and reading small print. Finally, he looked up, stared blankly into the camera, and said nothing.

“Go ahead, Harold. You’ll feel better,” urged the lawyer. “I lied under oath,” admitted the witness. The estate was saved.

Actually, Fisher, President of the International Academy of Trial Lawyers and Regent of the American College of Trial Lawyers, had more than one secret. The most significant is the most obvious: He unsettled the witness with questions about his personal life, making him wonder how much the lawyer had uncovered — which would frankly worry me, once he got past my address. By the time Burton was asked about something significant, he admitted a felony as casually as if he had been asked to verify that the day was Tuesday. Fisher didn’t just impeach the man; he ran over him, and noting slight movement in one of his fingers, backed the car up and finished him off. None of the lawyers present had the will to take another will to court. Over time, two more withdrew wills that they had already filed.

The advent of videotaped testimony has given litigators reason to think about using some of their secrets at depositions. Given that Americans receive most of their information from television, it follows that videotaped depositions can be devastating at trial. In those jurisdictions where lawyers can call adverse witnesses by deposition without showing unavailability, playing tapes devoid of opposing counsel’s questions — which are usually reserved for trial — can present a lopsided view of the case and witnesses.

What is more, if the deposition has been destructive, it creates an almost ineradicable negative impression that lingers throughout the trial, even if the witness later takes the stand. The camera doesn’t lie. There may be some wiggle room with answers on the hard copy, but it is impossible to back away from an answer captured by the camera. Done right, the result is trial by tape, a kind of Deist approach to litigation. Simply pop the edited video into the monitor and watch the case unfold.

This tactic can be effective. It can also blow up if done unskillfully, which worked to my advantage two years ago while representing Robert Sakowitz, scion of a chain of high-fashion department stores in the Southwest. Sakowitz, Inc., had been thrown into bankruptcy following the collapse of the Texas economy during the eighties. Robert’s nephew, Douglas Wyatt, had sued him for $40 million, alleging that he mismanaged and converted the assets of their family estate. The case hinged on the testimony of Robert’s sister (Douglas’s mother), Lynn Wyatt. She had been on the Sakowitz board of directors and in 1987 transferred her interest in the estate to Douglas so that he could sue Uncle Robert.

At trial, plaintiff’s counsel presented Lynn Wyatt as his first witness through an edited version of my videotaped deposition of her. It was a high-risk move because he had not asked a single question.

The jury watched as she denied knowing about Robert’s personal investments, the heart of the claim of alleged self-dealing. One example involved a company, RTS Leasing, which allowed Robert to take the depreciation on rolling stock, automobiles, and trucks that he bought and leased to Sakowitz, Inc. Mrs. Wyatt denied knowing (1) that RTS Leasing ever existed, (2) that Robert planned to collapse RTS Leasing because of changes in the tax laws, or (3) that he planned to sell its rolling stock to Sakowitz. She also testified that she did not know what “appraised value” meant, at least in this context, or that she had ever voiced concern about whether Sakowitz, Inc. would have to buy the autos at appraised value.

The jury’s impression was that Robert had personally benefitted from a secret side deal that should have benefitted the corporation and other family shareholders, including sister Lynn. But, the editing job done by opposing counsel had violated the rule against cleverness. When opposing counsel provided us with a list of their video edits, we discovered that critical admissions had been edited out, and we stayed up all night editing a video that completed her testimony. As soon as their tape ended. I objected under rule 106, the doctrine of optional completeness. The objection was sustained, and the judge allowed me to play our tape immediately.

Now the jury saw the rest of the picture. It included one dramatic segment in which I handed Mrs. Wyatt a transcript of a special meeting of the Sakowitz board in 1985 called to discuss RTS Leasing. The minutes showed that she attended the meeting, accompanied by her lawyer. I read to her Robert’s initial comments to the board, in which he reminded them that Sakowitz, Inc. had entered into an agreement with RTS Leasing five years before. I then asked Mrs. Wyatt if she wanted to change her testimony about not knowing about RTS Leasing. She recalled that she had been at the meeting and added that the transcript showed that her brother had explained RTS Leasing to her. The minutes also showed that Robert had explained that the new tax laws would require him to cease the leasing operation and sell the autos and trucks back to the corporation at appraised value. Robert also asked Lynn’s lawyer, Tom McDade, to explain the new tax law to his sister. Then I asked:

Q. And did Mr. McDade explain the new tax law to you?
A. I don’t remember.
Q. Could he have done so?
A. I don’t remember.
Q. If he did so, it would have been at the suggestion of your brother, would it not?
A. Well, that’s what it [the videotape] said Robert said.

Following a discussion of the appraisals done on the automobiles, the transcript showed that Lynn Wyatt actually questioned the changes in the tax laws, asking: “In other words, do they make [the company] pay ‘appraised’ value? The store is going to have to buy back the trucks?” That didn’t sound much like the woman who had moments earlier denied knowing the meaning of the word “appraisal.” Robert had responded, “Yes, but that’s an open market appraisal. You go to the various dealers of GM trucks or whatever it is and the value is whatever the value is.” Mrs. Wyatt then seconded a motion to expedite the transaction, at best a curious method of expressing disapproval of Robert’s “secret” deal. Confronted with additional minutes showing that Robert had sought and obtained board approval for virtually every transaction that Douglas questioned, Mrs. Wyatt conceded at her videotaped deposition that she never voted “no” on any of them and that Robert had done “wonderful things for Sakowitz.”

All this had been omitted from the plaintiff’s edited version of the videotaped deposition. Also omitted from the tape was Lynn’s candid admission that following her divorce from her first husband years ago, Robert had become a surrogate father to her sons, including the litigious Douglas.

The press followed plaintiffs’ counsel out at the lunch break at trial, demanding to know if they had intended to mislead the jury. The jury later returned a unanimous decision in Robert’s favor, clearing him of any impropriety in the handling of the estate.

Sometimes, even the best lawyer buries a hook in his thumb. The very best know how to remove it with as little damage as possible, like Ron Waska.

With the possible exception of Clarence Darrow, even legendary trial lawyers are forgotten within a generation. Despite a huge written record found in transcripts of trials — and now, videotaped depositions — litigators have few biographers, save by word of mouth within the profession. That is why it is incumbent on all of us to learn the story of Ron Waska, and why I hired him immediately following a trial in 1975.

I had wandered into the back of a courtroom, where Waska, them an Assistant United States Attorney for the Southern District of Texas, was trying an auto theft case, which the government prosecuted back then if the car was transported across state lines. As with most federal criminal prosecutions, proof was not really a requirement. All Waska had to show was: a stolen car; a driver; driven across state lines.

With the government’s star witness on the stand, Waska turned to the jury and, I swear, thumbs tucked under his suspenders, asked: “Did you see the defendant driving the car through Texarkana [a small Texas town that straddles the Arkansas border]?” The witness looked carefully at the defendant and finally answered, “No, sir. I sure didn’t. Never seen him driving at all. In fact, never seen him before today.” One could hear the SNAP of Waska’s suspenders in adjoining courtrooms but no emotion creased his face. Without turning from the jury the young prosecutor murmured emphatically, “Exactly. Exactly my point.”

That was a response of historic proportions. Waska seemed unconcerned by devastating testimony. A trial lawyer should always act as if he has faith, even when a spring-loaded witness causes him to consider wearing Huggies during his next trail. Never, ever, let them know, in the words of a Texas trial lawyer, where your buttons are.

Unfortunately, trying a lawsuit is not a “catch and release” sport. Winning lawyers, predatory lot that we are, are unlikely to throw back our verdicts in the interest of good sportsmanship. Therefore, it just makes sense to out-perform opponents at every turn — and especially during cross-examination. While you can watch good lawyers do it, while you can listen to their self-congratulatory tales of having done it, there is no substitute for climbing in the pit and having at it. You instincts will grow geometrically; very quickly, you will learn when and how to set the hook, to let him run, and reel him in.

Copyright 1994 American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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