John Simon and Erich Vieth invited celebrated attorney/author Pat Malone onto their podcast (Episodes 201 and 202 of The Jury is Out). Pat is one of the co-authors (with Rick Friedman) of the masterpiece, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability (2010). He joined John and Erich to discuss his 2016 book, The Fearless Cross-Examiner: Win the Witness, Win the Case. Why did Pat use the word “Fearless” in the title to his book?
We are taught in law school and trial advocacy that cross-examination is a scary and fearsome process. Standing up in court and having a conversation with a witness who does not want to help you in any way, shape or form, that’s intimidating. And actually, it should be intimidating. A fear-less cross-examiner is not a cocky cross-examiner. He or she is not an arrogant cross-examiner. When I say fearless, I have a very specific meaning in mind. I have in mind taking ourselves, our true authentic selves, then stripping off the armor of arrogance and nastiness that sometimes we put on just to protect ourselves, and really studying our cases and studying the witness and just figuring out the best lines of attack and the best ways of broadcasting those to the jury so that we and the jury and the witness and the judge are all literally on the same page. So that’s what I mean by becoming a fear-less cross-examiner. The style of cross-examination that was taught when I was a baby lawyer–the most prominent advocate and teacher of cross-examination techniques was a professor named Irving younger. Professor younger promulgated a style of cross-examination, and he was all about technique and not substance. I’m more about substance. [Younger’s] style of cross-examination, which he called “The 10 commandments of cross-examination,” it was all about being fearful.
What are the shortfalls of Younger’s “ten commandments”?
As one of them said, never ask one question too many. So if you take that seriously, that particular commandment, that means you’ve always got this little voice in your head telling you, be quiet, sit down, shut up. You’re about to screw it up. And, and that’s bad. He has a lot of other commandments, like always ask leading questions or only ask leading questions. And I think that, you know, leading questions are good, but they’re not anything close to a hundred percent. And if you free yourself from that particular commandment and learn that there are situations when your cross-examination actually becomes much better. When you don’t ask leading questions and you ask open-ended questions. When you know the witness doesn’t have a very good answer that can lead to very powerful, very memorable cross-examination. I believe that leading questions are good to kind of efficiently and quickly put the witness into a corner. But then once the witness is in the corner and you know that there’s not much way they can get out of the corner, then you just open the door and ask them a non-leading question.
Good cross-examinations might look inspired but, according to Pat, they rely upon massive amounts of preparation. It is this preparation that puts one in a position to ask adverse witnesses open-ended questions that score points.
So my first rule is you’ve got to start this at least I’d say 30 days before trial, if not even sooner than that, now, sometimes we get surprised and we think we’re going to be settling a case. Well, there are situations like that, but for the most part, you kind of know what cases are going to go to trial. And it’s not a waste. Even if you do some work that you then never use because you settle the case. Well, knowing that you have in your saddlebags, some really effective cross-examination stuff that your opposing lawyer doesn’t know about. You don’t have to tell them what you’ve got, but it will help you in your self-confidence level to hang tough and get a bigger number for your client. So the kinds of things I suggest you think about looking up would include, and this is for, let’s say a medical witness. The first thing you want to do is an independent check to make sure that they really are certified by various boards, that they claim to be certified by. This is all on my website. I’ve got this all laid out…
Pat makes it clear that Younger did offer some generally useful advice in his “ten commandments.” For instance, he urged attorneys to use short questions with plain language. He also urged the importance of listening carefully to the answers of the witness. It’s also important to not get “grouchy” with the witness or lose your temper. You don’t want the jurors to see these things. Many of Younger’s commandments are “just too fearful,” however.
Don’t ask a question unless you know the answer to the question, that’s very bad because there are, for one thing, it promulgated this obsessive style of deposition taking where you take the seven-hour depositions. And when you do that, you’re guaranteed to have such a long transcript that the little nugget you thought you got on page 137 is totally explained in a different way by the witness on page 239. And so if you take a deposition, you want it to be as tight as possible. But my point is, there are plenty of times when you may not know the answer to this specific question, but it’s still a good question to ask, because when you think about your case and you know enough about your case, you know that there really is no good answer to this question. And therefore it’s one that should be asked… He says, save the ultimate point for closing. And that leaves you in this peculiar situation where you’re kind of slinking away from the witness and hoping nothing happens to upset your little apple cart that you’ve set up so carefully. But then when you come back and closing argument, it’s too late.