Cross-Examination Strategies for Hostile Witnesses: Optimizing - - PowerPoint PPT Presentation

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 whammel@constangy.com Hessam Parzivand Owner The Parzivand Law Firm 10701 Corporate Drive Suite 185 Stafford, TX 77477 hp@parzfirm.com

 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

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 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

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 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

• r 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

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BICCC  Bias, Prejudice & Motive  Prior Inconsistent Statements  Conduct Probative of Untruthfulness

• Character Evidence
• Prior Criminal Convictions

 Competency, including the ability to perceive, recall,

• r relate

Methods of Impeachment

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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

• utweigh 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

• r 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
• f 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)

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 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

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 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

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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

• r 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

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

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

25

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

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 Jurors retain about 20 percent of evidence presented solely through

• ral 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

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Premium Budget

Technology Options for Every Budget

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 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

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

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

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 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

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

Jurors inherently compare and contrast



Contrast influences perception of the facts



Best way to present contrast is through charts

Use to Show Emphasis

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

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

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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

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 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

• r attorneys have the same capabilities. You may need to provide

equipment  Bring backups – both electronic and paper

Know Your Tech Limitations

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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

40

41



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,
• r 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
• f 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

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

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

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 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

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• 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

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

Watch the witness closely to determine nervous responses, avoidance of eye contact, and changes in demeanor indicating a lack

• f 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

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

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

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

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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