Cross-Examining Hostile Witnesses and Using Technology and - - PowerPoint PPT Presentation

Cross-Examining Hostile Witnesses and Using Technology and Psychology as Additional Tools

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WEDNESDAY, NOVEMBER 14, 2012

Presenting a live 90-minute webinar with interactive Q&A

Sandra F . Clark, Shareholder, Mehaffy Weber, Beaumont, Texas William E. Hammel, Partner, Constangy Brooks & Smith, Dallas

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5

CROSS EXAMINING HOSTILE WITNESSES

Sandra F. Clark MehaffyWeber, P.C. Beaumont/Houston/Austin, Texas 409.835.5011 ext. 432 SandraClark@mehaffyweber.com

6

Purpose of Cross Examination

“Cross examination is the ‘great engine’ for getting at the truth.” Ralph Fine

7

• Stake in outcome

– Party – Identifies with party – Reputation as witness – Takes a side

• Expert

– In the testifying business – Competitive: Wants to win

• Personality

– Dislikes your client – Aggressive personality – Dislikes litigation and lawyers

7

Why is a witness hostile?

8

Diffuse the Hostility

• Personality

– Disarm with your own personality – Know their background and find something common

• Experience

– Means they’ve done this a lot – Means they have lots of opinions out there – Sometimes that can help you

9

Scope of Cross Examination

• Rule 611(b) FRE – Cross

examination is limited to scope of direct examination and matters of witness credibility

• Most states have broader cross

than that; however, 10 states have adopted the federal model

10

Is Cross Examination Necessary?

• Did that witness hurt my case?
• Would asking questions improve or simply

reinforce bad testimony?

• How important is the witness?
• Does the jury expect cross?
• Can the witness be controlled or

impeached?

11

Develop a Plan For the Hostile Witness

• Establish a goal for any witness
• Decide the facts or opinions you

must establish with each

• Cross examination can be the most

interesting part of trial

12

Techniques for Cross

Ask leading questions? Usually

• Each question should advance your case
• Nail the witness with cross
• Every question must fit the plan
• Unless the answer is known or does not

matter . . . DO NOT ASK THE QUESTION!

13

More Techniques

• Prepare, prepare, prepare
• Outline the topics to cover
• Be organized
• Master all prior depositions, articles, and
• ther documents for the witness
• Investigate witnesses - the Internet can be

a wealth of information

14

Results of Internet Search

Q: You are on staff at M. D. Anderson Hospital? A: Yes. Q: Isn’t it true that M. D. Anderson Cancer Hospital has a website? A: Yes. Q: Have you ever had any articles published on the M. D. Anderson website? A: A few. Q: Do you remember one of your articles that appeared there just three months ago? A: I think so. Q: In that article, you talked about T-cell lymphoma, the very type of cancer involved in this case? A: I believe so. Q: And you wanted to be as accurate as possible? A: Of course. Q: Turn to page four of the article that was published there. A: Okay. Q: In this article, which you published on the web site just three months ago, you talk about what is known regarding the cause of T-cell lymphoma, isn’t that right? A: Yes. Q: Isn’t it true that you said the following: “No one knows what causes T-cell lymphoma.” Is that what you wrote just three months ago? A: That’s what it says.

15

Be Flexible

• Outlines are necessary - to a point
• Refrain from looking at the outline too often

. . . Jury will think you are insecure

• Non-leading questions have their place

. . . Allow the witness enough rope

• Even “Bad Answers” can work at times

. . . Shows witness Not credible

16

Example of No Flexibility

• Recognize that the best question may

arise from the answer, not the outline. For example: Q: Are you a married man? A: No, my wife died. Q: That is too bad. What was her cause of death? A: She suffocated. Q: What is your current address? (From the outline.)

Example of Inflexibility

17

Strategy

• Vary the routine
• f leading

questions

• Know the

difference between tough and mean

• Know when to

quit

18

More Strategy

• Cross allows you to call fewer

witnesses

• Avoids repetition of facts or details
• Moves the case along in Juror’s view
• Prevents opposing counsel from

scoring points through the witnesses you do not call in your case

19

Destructive Cross

• Discredits the testifying witness or

another witness

• Reduces persuasive value of the
• pposition’s evidence.
• Establishes control of the witness

both in his mind and in the mind of the jury

20

Always remember…

Your audience is the jury, not the expert

20

21

Don’t make the jury mad

• Do not demand a “yes”
• r “no” answer
• Do not quibble over

minor details

• Do not appear as a

“cross” examiner

• Do not treat every

witness as a liar

• Do not argue with a

witness

• Do not interrupt an

evasive witness

• Do not object unless you

have to

22

Supportive Cross Even from Hostile Witness

• Bolsters your case
• Helps your story
• Develops favorable

aspects of the case

• Supports your

witnesses

• Discredits other

witnesses

23

Experts

• Rule 702 FRE

(1) Will specialized knowledge assist trier of fact? (2) Are the opinions and methods reliable?

24

Experts

• Judge is gatekeeper

(1) Is expert’s reasoning and methodology scientific valid? (2) Have conclusions been tested? i.e. subject to peer review? (3) Is Methodology widely accepted?

Daubert v. Merrill Dow Pharmaceuticals 509 U. S. 579 (1993)

• Daubert application is flexible
• Should be applied to other technical experts

Kumho Tire v. Carmichael, 526 U.S. 137 (1999)

25

Handling the Hostile Expert

• Be Polite and

Professional

– Know your jurisdiction and expected behaviors

• Be Brief
• Be Strong
• Your demeanor

counts!

26

Controlling the Expert

• It is crucial to maintain control over an expert
• Do not allow the witness simply to restate or

explain

• Prepare a list of points that the witness must

concede

• Keep questions short to obtain a short

answer

• Do not skip around too much
• Undermine the value of an expert’s

credentials

• Show him to be biased

27

Example of No Flexibility

28

Example of No Flexibility

Q: Dr. , you came here from a trial in Florida, tomorrow you go to California? A: Yes Q: In all these trials, in all these states, you use the same slides, the same facts, the same opinions? A: Yes

• Q. And you gave the same testimony today without reviewing a

single document, deposition or shred of evidence about Mrs. Jones’ case that you will give tomorrow in another plaintiff’s case? A: I suppose so Q: Charging $500 per hour each and every time? A: Yes STOP!

Example of Bias

29

Impeachment

• Demonstrate bias, prejudice or clear

partisanship

• Point to prior inconsistent statements
• Demonstrate that the testimony of the

expert is contrary to recognized authorities;

• Demonstrate that the testimony is

unreasonable or improper; and/or

• Attack the credentials or qualifications.

30

31

Example of No Flexibility

Undermine the Credentials: Undermine the Credibility

• Yet, you say you’re a board certified
• toxicologist. The organization that you

claim gave you that certification is the American Board of Forensic Examiners, correct?

• That organization is not a medical

board?

• Did you know that the group certifies

everything from dentists to accountants to nurses to policemen to social workers to homeland security?

32

Testimony on Qualifications

• You’re not certified by the American Board of

Toxicology because you couldn’t pass the test?

• You failed the same section twice now, is that

right?

• Included in that part that you failed twice was

carcinogenesis, right?

• And let’s see, also part of that section that you

failed twice was– hematopoietic toxicity, right?

• Which is what you are actually testifying about in

this case? I mean multiple myeloma is a hematopoietic cancer, right?

33

The Expert’s Publications

• Investigate peer review

process

• Explore publication in which

article was published

• Subpoena the background

information from the Journal

34

Undermine the Expert’s Methodology

• Simple admissions may debunk the

expert’s testimony

– Is testimony contrary to common sense – Is it grounded in science – Does it contain speculation or conjecture – Is cross too subtle

• A juror will recall a concession from an

expert witness that his testimony is speculative or mere conjecture

35

Fact Witnesses

• Fact witnesses may be hostile,

neutral or friendly – know which type

• A hostile fact witness must be

controlled

• May provide necessary facts for

your case

36

• Take every potential witness’ deposition
• Obtain clear answers to clear questions
• The fact witness deposition may be his

trial testimony

• Elicit anything helpful on deposition in

case he is not called at trial

Fact Witnesses (cont’d)

37

Ethical Considerations

• Texas Disciplinary Rules of Professional

Conduct 3.04 “A lawyer shall not:

…(2) state or allude to any matter that lawyer does not believe is relevant…or that will be supported by admissible evidence…(4) ask any question intended to degrade a witness or other person unless question is relevant.”

• Similar concerns in model rules

Using Technology in Cross Examination

38

William E. Hammel Constangy Brooks & Smith 214.646.3422 whammel@constangy.com

How Jurors Retain Information for Future Deliberation

39  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.

Help the Jury Visualize

40

vs.



The average person has a 17-minute attention span.



Show, Don’t Tell: Two-thirds of the population are visual learners, including your jurors and judge.



A picture is worth a thousand words, seeing is believing. etc.

Always Keep Your Focus

• n Teaching the Jury

 The spotlight is not on you, so don’t

steal the show.

 Normal rules of cross examination

apply.

• be clear, be brief, and then stop

41  Minimize the obtrusiveness of any technology used.  Remember, there is no point in using technology unless

it furthers the ultimate goal of teaching the jury your client’s story. Don’t let your message get lost!

 Keep it simple. Make it easy for the jury.

That Being Said, Know What is Expected of You

42



Today’s jurors have unrealistic expectations of the type of technology they expect to see in the courtroom.



Cross examination is a battle of impressions, not logic.



You will be severely disadvantaged if you don’t use technology because the other side will likely do so. Don’t bring a knife to a gun fight!

Social Media in Cross Examination



Undermine witnesses’ credibility.



Concession-based cross examination.



Impeachment!

43

It’s Where the Evidence Is

44

Facebook



Almost a billion registered profiles on Facebook. At least 483 million people use Facebook on a daily basis.



U.S. users spend 12.7% of their internet time on Facebook alone (including work time).



With over 30 billion pieces of content uploaded every month to Facebook alone, it is virtually inevitable that witnesses have generated social media evidence relevant to your lawsuit.

45

LinkedIn



Typically, a better source of evidence than Facebook.



Especially valuable in non-compete and trade secret litigation.



LinkedIn “recommendation” as evidence of pretext in age discrimination lawsuit.

46

Potential Social Media Evidence

 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.

47  May also include “check ins,” which are

time-stamped entries of where a user was at a point in time.

 Allows you to portray the witnesses as he is in real life – not

the role he has been prepared to play on the witness stand.

Using Technology in Cross Examination



Exhibits can also include reenactments, other witnesses’ videotaped testimony, timelines, relationship charts, and computer simulations.



Always aim to minimize the obtrusiveness of any technology.



It should augment your cross examination – not replace it.

48

Use to Authenticate Electronically Stored Information



In depositions, address authentication in your outline because it may be your only chance to prove up and anti-hearsay ESI.



Have the witness log into various sites during the deposition and testify to username and contents.



Authenticate text messages and picture mail.

49

Use to Impeach

Wait, aren’t you supposed to be on FMLA leave?

50



Attack witness’s character for truthfulness, bias or motive, or prior inconsistent statements.



Undermine the severity of physical or mental injuries.



Show when departing employees first discussed competing with former employer or anticipated litigation.

Prior Testimony or Testimony

• f Other Witnesses

51



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 for Emphasis

52



Keep the jury’s focus where you want it to be.



Trial presentation technology also provides an effective tool for comparing one or more items, such as documents or photographs.

Use to Show Contrast

53



People inherently compare and contrast.



Charts are an effective way to show points of contrast.

Use to Present Timelines, Relationship Charts, and Decision Trees

54



Timeline: clear, simple, and large timeline of events. One of the most effective visual aides.

• what happened, when it happened, and how it happened
• lets the jurors see the correct chronology and prevents your opponent from obscuring what they knew and when they knew it.
• color code, if possible.



Relationship Chart: shows the connections between witnesses, between facts, or a combination of both.

• most jurors do not remember relationships between parties
• relationships imply motive



Decision Tree Charts: shows how and why decisions are made by showing the decisionmaking process

• context matters.
• very effective for cases where a clear right or wrong choice was made.

Use to Summarize

55



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.

Preparation is Paramount



Know your limits. In some cases, you may find it best to use courtroom consulting companies or graphic designers to help prepare exhibits such as animations.



Scout the courtroom or deposition room beforehand. Not all Courts or attorneys have the same capabilities. You may need to provide equipment such as extra monitors, projectors, and speakers.



Have your own backup!

56

Technology Tips



Don’t overuse multimedia. Choose exhibits and sound bites carefully. Too many video clips dilute effectiveness.



Make your visuals as simple as possible, but no simpler.



Use charts, bullet point lists, timelines, relationship charts, and decision trees. Requires preparation.



Have an Elmo projector and paper exhibits as backup. 57

Psychology in Cross Examination

58

Pay Attention to How the Witness Answers

59



Witnesses typically do not willingly help the adverse attorney or hurt their case.



Watch the witness closely to determine the line of questioning that causes nervous responses, avoidance of eye contact, and changes in demeanor indicating a lack of confidence in the answers.

• body language and demeanor
• tone
• word selection



It can be easy to miss the fact that a witness has given you a good answer because you are busy thinking about the next question.

How You Come Across Matters Too

60



In trial, your demeanor and tone are also important. Show confidence and avoid podiums.



Juries expect cross examination to be somewhat confrontational.



Juries identify with the witness more than the attorney. No one likes a bully.



Show the jury that the witness’ admissions are important. Don’t keep your head down taking notes.

Sequencing

61



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.

• limited attacks on certain areas of the witness’ story

Paint a Picture by Telling a Story

62



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.

Framing Your Questions

63



One fact per question.



Make your statement and get to the yes or no answer quickly.



Don’t use “isn’t it true…” Instead, testify:

• it was dark
• it was raining



Be ready to impeach.

Time Jumping

64



The witness was likely prepared to testify chronologically. Cuts them off from 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 due time, 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. Still begin and end strong.

Use Personal Space

65



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 to show signs of discomfort which, in turn, could affect the jury’s impressions of the witness’s creditability.



Again, remember, no one likes a bully.

Test the Limits of Testimony at Deposition

66



At deposition, 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 telling the jury 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.”

Bolster Your Witnesses at Deposition

67



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.

• did they seem sincere?
• were they professional?



Address what the witness thinks your witnesses could have done better and worse.

Piggybacking

68



Rest one question on the back of the previous answer using the witness’s

• wn words.



More difficult for the witness to take issue with your question because it would involve disagreeing with their own testimony.



Prevents a witness from escaping what you are trying to establish.

Don’t Ask the Ultimate Question

69



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! Argue the ultimate point in your closing.



Better to persuade the jury with their own conclusions than it is to persuade them with yours.

Begin and End Strong

70



How you begin sets the tone for how the jury will receive your cross. First impressions matter!



Primacy & Recency: We tend to accept what we hear first as being true and remember longest what we hear last.



Open with strong points and close with strong points in cross-

• examination. Leave the boring, but necessary, issues for the middle of

the cross.