cross-examination strategies for hostile witnesses...
TRANSCRIPT
Cross-Examination Strategies for Hostile Witnesses: Optimizing Technology and Applying Psychology Tools
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TUESDAY, JANUARY 20, 2015
Presenting a live 90-minute webinar with interactive Q&A
William E. Hammel, Partner, Constangy Brooks & Smith, Dallas
Hessam Parzivand, The Parzivand Law Firm, Sugarland, Texas
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Cross-Examination Strategies for Hostile Witnesses,
Optimizing
Technology in Cross Examination, and Applying Psychology
Tools
“Cross examination is the great engine for getting at the truth.”
- Ralph Fine
William E. Hammel
Partner
Constangy Brooks & Smith
1201 Elm Street
Suite 2550
Dallas, TX 75270
Hessam Parzivand
Owner
The Parzivand Law Firm
10701 Corporate Drive
Suite 185
Stafford, TX 77477
The spotlight is not on you, so don’t steal the show
Keep it simple; make it easy for the factfinder
Normal rules of cross examination apply
• be clear, be brief, and then stop!
Minimize the obtrusiveness of any technology used
Rule #1: Never Forget Your Audience
7
Attack the witness’s credibility without hurting your own
• Otherwise, the jury is likely to sympathize with the witness and
not the lawyer
• Do your job and get out
Let the impeachment facts speak for themselves
• Have a good faith basis for every question you ask for
impeachment purposes
• Don’t imply facts that aren’t true
• Don’t ask irrelevant questions to anger or embarrass the
witness
Never Damage Your Credibility
8
Your demeanor and tone are important – most depositions
are videotaped
In trial, show the jury that the witness’s admissions are
important – don’t keep your head down taking notes
Juries expect cross examination to be somewhat
confrontational, so deliver
But, don’t go too far – juries identify with the witness more
than the attorney… no one likes a bully!
How You Come Across Matters!
9
Ground Rules
Scope of Cross Examination: FRE 611(b) – at trial, cross
examination is limited to scope of direct examination and matters of
witness credibility
Who May Impeach: FRE 607 – the credibility of a witness may be
attacked by any party, including the party calling that witness
Always videotape depositions unless cost is a concern or unless you
know you are not going to trial
10
One fact per question – no compound questions
No elaborate set-ups
Build up to your conclusions fact by fact, question by question
Each “one fact question” should be leading and restrict the
witness to a yes/no answer
Especially at trial, leading questions should consist of affirmative
statements by you with which the witness merely agrees
Framing Your Questions
11
Don't expect help from the witness. An adverse witness typically
will not give you the conclusion you want, so don’t expect it
Don’t ask that final question or otherwise elicit the witness’s self-
serving explanation
Don’t ask an impeachment question that calls for an explanation
or opinion – you do that later for the jury
Don’t trust the factfinder to understand the sequence of facts
leading to the conclusion – again, you explain the significance
later
The Don'ts
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Discredit the witness by cross-examination about facts which reflect
negatively on the witness‘s knowledge, truthfulness, or credibility
Reveal bias or prejudice
Prior inconsistent statements
Show that expert testimony is contrary to recognized authorities
Demonstrate that the testimony is unreasonable or improper
Attack the credentials or qualifications of a witness
Impeachment
13
BICCC
Bias, Prejudice & Motive
Prior Inconsistent Statements
Conduct Probative of Untruthfulness
• Character Evidence
• Prior Criminal Convictions
Competency, including the ability to perceive, recall,
or relate
Methods of Impeachment
14
Collateral Facts Rule:
• Impeachment of a witness regarding collateral facts can only be done
through intrinsic evidence
• When a witness is cross-examined on collateral facts, the attorney is
bound by the answer
• You cannot contradict a witness with another witness or other
extrinsic evidence – even if the witness untruthfully denies a fact, the
answer must be accepted
• You can press the witness within reasonable limits – the Court will
usually decide if the impeachment is “worth it.”
Limits on Impeachment
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• Prior Convictions: FRE 609: For the purpose of attacking the
credibility of a witness, evidence that a witness has been
convicted… shall be admitted if elicited from the witness OR
established by public record during cross-examination or
thereafter
• Bias: the bias of a witness (a collateral matter) may be
established by extrinsic evidence, but only after first showing the
evidence to the witness
Collateral Source Rule Exceptions
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If the witness‘s prior conviction was for a crime
involving dishonesty or false statement, evidence of
that crime is admissible for impeachment purposes
regardless of whether the crime was a misdemeanor or
a felony
If the witness‘s prior conviction was for a crime not
involving dishonesty or false statement, evidence of
the conviction is only admissible for impeachment if the
crime was a felony – misdemeanors are not admissible
Always subject to FRE 403
If a conviction is more than 10 years old, the probative
value of admitting the conviction must substantially
outweigh the danger of unfair prejudice under FRE
609(b). Must also give opposing party reasonable
notice of intent to use
Attacking a Witness Through Prior Convictions
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• Witness bias may be shown by a number of circumstances, including familial or
employment relationship with a party, and negative relationship with a party, or a
financial stake in the outcome of the litigation
• FRE 610: evidence of a witness‘s "religious beliefs or opinions is not admissible to
attack or support the witness‘s credibility
precludes evidence attempting to show that a witness should not be trusted
or believed because the witness lacked religious beliefs or had unusual
beliefs
FRE does not preclude an inquiry for the purpose of showing interest or
bias because of religious beliefs
• If a witness is impeached because of bias, prior sworn statements consistent with
trial testimony are admissible
Showing Bias
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• Demonstrate that the witness was unable to sense what he claimed
to have – obstructed view, etc.
• Show that the witness lacked the requisite mental capacity to perceive
• Attack on the witness’s credibility, so it is a matter for the factfinder to
consider
Attacking Competency
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• Any witness may be impeached by showing that on a prior occasion he/she made
a material statement inconsistent with his/her trial testimony
• Prior statement can be taken from many sources
formal, sworn statements made in prior testimony, affidavits, and discovery
responses
casual remarks made by a witness to another
• If the prior statement is sworn, then it can be offered to impeach AND for the truth
of the matter asserted
• If unsworn, the prior statement can only be used to attack the credibility of the
witness – it is not admitted to prove the truth of the matter asserted and should be
accompanied by a limiting instruction
Attacking Through Prior Inconsistent Statements
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Prepare! Know the witness’s prior statements before you cross
examine
Pay close attention to the witness’s answers on direct and note those
that may contradict prior statements – if you don’t remember what
was said, you can’t impeach
Make sure the statement is actually inconsistent
Prior Inconsistent Statements
(continued)
21
Can the witness be impeached?
Did the witness hurt your case?
Would asking questions improve or simply reinforce bad testimony?
How important is the witness?
Does impeaching the witness advance your theory of the case?
Does the jury expect a cross examination?
What are your goals? Is the goal of the impeachment to have the
factfinder believe the prior inconsistent statement OR simply to show the
witness is contradicting herself?
Which fact or version of events do you like better for your theory— the
fact from the prior statement or current statement?
If the current version of events is better for your client than the previous
version, don’t impeach!
Will rehabilitation efforts succeed?
Be sure to keep a consistent theory of defense throughout the trial!
Impeachment is a strategic decision!
Planning Your Impeachment
22
Demonstrate bias, prejudice or clear partisanship
Demonstrate that the testimony of the expert is contrary to
recognized authorities
Demonstrate that the testimony is unreasonable or improper
Attack the methodology used in arriving at conclusions
Point to prior inconsistent statements
Attack the credentials or qualifications
Experts
23
Controlling the Expert
Maintaining control over an expert is critical
Prepare a list of points that the witness must concede
Keep questions short to obtain a short answer
Do not allow the witness simply to restate or explain prior answers; similarly, avoid rephrasing good questions
Do not skip around too much
Attack or at least undermine the value of an expert’s credentials
Always explore bias in discovery
Have impeachment material immediately available
Use video deposition clips to impeach
Maintain eye contact Make your points and move on 24
Other witness deposition testimony, timelines, relationship charts, reenactments, and computer simulations
Aim to minimize the obtrusiveness of any technology – it should
augment your cross examination, not replace it
Use to highlight your cross points or remind the jury of your
theme
Using Technology in Your Cross Examination
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vs.
Show, Don’t Tell: Two-thirds of the population are visual learners,
including your jurors and judge
Use visual aids. A picture is worth a thousand words, seeing is
believing. etc.
“Don't say the old lady screamed. Bring her on and let
her scream.”
- Mark Twain
Help the Jury Visualize
26
Jurors retain about 20 percent of evidence presented solely through
oral testimony
Judges and juries are better able to retain information when it is
presented with visual support from pictures, diagrams, charts, or
graphics… can be up to 80%
Jurors need to be able to remember information days later when
deliberating, so you need to make it stick
How Jurors Learn and Retain Information
27
Cross examination is a battle of impressions, not logic
Jurors have unrealistic expectations of the type of technology they expect to see in the courtroom
You will be severely disadvantaged if you don’t use technology because the other side likely will
Smaller cases can be tried with an iPad or other tablet computer and a projector connection
Don’t Bring a Knife to a Gun Fight
28
Premium Budget
Technology Options for Every Budget
29
Timelines: clear, simple, and large timeline of events… probably the most
effective visual aid
• Allows the jury to see your “correct” chronology of events
• Corral the witness by showing what she knew and when she knew it
Relationship Charts: shows the connections between witnesses and facts
• Jurors typically do not remember relationships between witnesses
• Relationships infer motive
Decision Trees: flowchart of the decision-making process
• Shows how, why, and when decisions were made
• Can add alternative decisions and their effects
Use to Show Timelines, Relationship Charts, & Decision Trees
30
Summaries help jurors organize, understand, and remember critical
information
Another chance to repeat evidence to the jury
Many times, allows you to create evidence that the jury can use in
deliberations
Use to Summarize
31
In depositions, address authentication in your outline because it may be your only chance to prove up ESI
Have the witness log into various sites during the deposition and testify to username and contents
Authenticate text messages, picture mail, GPS information, etc.
Use to Authenticate ESI
32
Jurors inherently compare and contrast
Contrast influences perception of the facts
Best way to present contrast is through charts
Use to Show Emphasis
33
Video depositions should be encoded and synchronized with the
transcript text
Allows you to index and play selected portions of a videotaped
deposition with minimal interruption
Jurors can see how sincere the witness was as he/she made
earlier statements
Use to Impeach
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Undermine credibility
Concession-based cross examination
Impeach!
Social Media in Cross Examination
35
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Can obtain information detailing where the user lives, works, socializes, went to school, and grew up
Also can obtain pictures, friend lists, logs of conversations with other users, and references to other evidence
May also include “check ins,” which are time-stamped entries of where a user was at a point in time (similar to GPS records).
Allows you to portray the witness as she is in real life – not the role she has been prepared to play on the witness stand
“Hey, aren’t you supposed to be on FMLA leave?”
Potential Social Media Evidence
37
In some cases, you may find it best to use courtroom consulting companies or graphic designers to help prepare exhibits and visual aids
Scout the courtroom or deposition room beforehand. Not all courts or attorneys have the same capabilities. You may need to provide equipment
Bring backups – both electronic and paper
Know Your Tech Limitations
38
Psychology in Cross Examination
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Make a mental image of what you are seeking to describe.
Present that mental image through leading questions
Use present tense and descriptive words appropriate for the
context
Paint a Picture by Telling a Story
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Chapter Method: organizing by chapters is usually most
persuasive
• group questions by cross examination goals
• each goal should prove a fact, introduce a fact, discredit a fact,
or adversely impact the jury’s perception of the witness’s
credibility
Each chapter should have a theme and its own conclusion which
supports your case
• group questions by cross examination goals
• focus on facts beyond change
Facilitates time jumping
Sequencing
41
• Best method for gathering information and learning the scope
of the witness’s knowledge
• Use multiple funnels – one for each chapter in a sequence
• Three Phases
1. Open Phase
2. Clarification Phase
3. Closing Off & Pinning Down Phase
Information Gathering at Deposition:
The Funnel Approach
42
Rest one question on the back of the previous answer using the
witness’s own words
More difficult for the witness to take issue with your question because it
would involve disagreeing with their prior testimony
Prevents a witness from escaping what you are trying to establish
Piggybacking
43
When a witness will not agree with anything you want her to
confirm, take it to the extreme and work back to the specifics
Are you testifying that you never left work before your shift
ended?
Are you saying that your supervisor had no redeeming
qualities whatsoever?
Clean up hedge words like “usually” or “mostly”
Test the Limits
44
• The witness is likely prepared to testify chronologically – time jumping cuts
“safe zone” testimony
People will admit to mitigating damages more easily before you ask
liability questions
• Do not let a witness change sequence
Always be polite: “We will get to that in a moment, but right now I
would like to ask you about…”
• Develop risky areas of testimony only after establishing control of the
witness through your safe chapters
Time Jumping: The Leapfrog Approach
45
Watch the witness closely to determine nervous responses,
avoidance of eye contact, and changes in demeanor indicating a lack
of confidence in the answers
• body language and demeanor
• tone
• word choice
Know your material – it can be easy to miss the fact that a witness
has given inconsistent testimony because you are busy thinking
about the next question
Pay Attention to How the Witness Answers
46
Invading personal and intimate zones tend to cause stress
When you approach a witness, stand close while the witness reviews
a document
This stress can lead to the witness showing signs of discomfort which,
in turn, could affect the testimony and/or the jury’s impressions of the
witness’s creditability
Be subtle – again, no one likes a bully
Use Personal Space
47
Don’t miss an opportunity to ask the adverse witness how she feels
about your key witnesses at deposition
Have corporate representatives and key witnesses present for
cross examination and ask:
did they seem sincere at the time?
were they professional?
Grade the Paper Questions: address what the witness thinks your
witnesses could have done better and worse
Bolster Your Witnesses at Deposition
48
After having the witness agree with you again and again, you may be
tempted to ask the ultimate question
One question too many trap… don’t do it! You argue the ultimate
point in your closing
Better to persuade the jury with their own conclusions than it is to
persuade them with yours
Exception: if the witness is giving you gifts, see what you can take!
Don’t Ask the Ultimate Question
49
How you begin sets the tone for how the jury will receive your
cross. First impressions matter!
Primacy & Recency: begin and end with your strongest cross
points
Open and close with strong points in cross-examination, such as
impeachment – leave the boring, but necessary, issues for the
middle of your cross
Begin and End Strong
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