The Secrets of Cross-Examination

The Secrets of Cross-Examination How to Avoid the Pitfalls at Trial TIMOTHY B. WALTHALL The author is a trial lawyer for the U.S. Department of Justice, formerly with the law firm of McCampbell & Walthall, P.C., in Washington, D.C. The views expressed here are those of the author alone and not those of the Department of Justice. The folklore of cross-examination is filled with the hallowed stories of Edward Carson and Oscar Wilde, Abraham Lincoln and the almanac, Max Steuer and Sophie Shapiro, and Edward Bennett Williams and Jake Jacobsen. Such stories fill us with admiration and aspiration but also with anxiety and trepidation. Cross-examination is the hardest thing that a trial advocate does in the courtroom. Cross-examination unlike voir dire, opening statement, direct examination, and closing argument is the only unscripted interaction with another human being in the course of the trial. This article gives some practical guidelines on how to avoid the pitfalls of cross-examination. The focus is on civil, as opposed to criminal, cross-examination. In particular, I take my illustrations from cross and (what amounts to the same thing) adverse direct examinations in the recently tried antitrust merger case, United States v. Aetna, Inc., CA No. 16-cv-1494 (D.D.C. 2016). In antitrust prosecutions, not unlike criminal defenses, much of the evidence you need to make your case can only come from witnesses aligned with your opponents. For many years, there were no reliable guidelines for crossexamination. Wigmore first told us that cross-examination was beyond any doubt the greatest engine ever invented for the discovery of truth, but he left no instructions on how to operate the great engine. 5 J. Wigmore, Evidence 1367 (J. Chadbourn, rev. 1974). For years, the major source on cross-examination was Francis Wellman s The Art of Cross-Examination (1905). Wellman collected many fascinating examples of successful cross-examinations. He did not so much discuss techniques as he told stories about great cross-examiners and gave only hints as to how to actually cross-examine a witness. These days there is a well-stocked arsenal of books, articles, videos, and other literature on cross-examination. Good cross-examination is now considered the work of a studied legal technician who has mastered the skills and methods of witness examination. But the legal system s need for skilled cross-examiners in courtrooms across the country has never been more acute, and most commentators still agree that crossexamination is the skill most lacking in trial lawyers today. So let us take a look at some of the secrets of cross-examination. The Basics of Cross-Examination Purpose. A common misapprehension of lawyers new to crossexamination is that they must contest every statement the witness made on direct examination. My first secret of cross-examination is that it is a commando raid not the invasion of Normandy, as Irving Younger put it. The object of cross-examination is not to confront the witness on every bit of his direct testimony. Quite the opposite: You should carefully select the subject matter of your cross-examination and be concise in your attack. A deeper secret, however, is that cross-examination is not designed primarily to obtain information; the true point of 1

cross-examination is to create an appearance of the witness that makes an impression on the jury. More specifically, you want to show something about the other side. The purpose of the cross is to tell the good guys from the bad guys. J. McElhaney, McElhaney s Trial Notebook 451 (ABA 4th ed. 2005) (quoting Deanne Seimer). Terence MacCarthy elevated this concept to his Look Good system of cross-examination. In his system, the purpose of cross-examination is for you to look good and the witness to look bad. This point is so important that you are even willing to give up control if the witness looks bad in the eyes of the jury. See MacCarthy on Cross-Examination 113 (ABA 2008). There once was only a single purpose of cross-examination and that was to attack, pillage, plunder, and take no prisoners. This was characterized by a mean conversation consisting of arguing, bickering, and quibbling with the witness. MacCarthy called this dialogue cross-examination. The days of the snarling cross-examination are over. Today there are three recognized potential purposes of cross-examination, each requiring separate questioning techniques: (1) eliciting favorable testimony (almost every witness has some of this); (2) limiting the witness s testimony; and (3) traditional destructive cross-examination. Preparation. The first rule of trying any case is to prepare thoroughly. This is no less true for cross-examination than for any other aspect of the trial. So this is no secret; but how do you prepare for cross-examination? In essence, you must run to ground every single bit of information that could be used to confront the witness or support your theory of the case. Ultimately, before the witness ever speaks a word on direct, you must have your cross-examination completely outlined. To begin the process of organization, the examiner must index all that the witness has said previously about the case. My method for civil cases in which many depositions have been taken is to compile abstracts of all testimony (summaries of all important points and where to find them) and then group the testimony and page numbers by topic in a separate index so that all testimony related to each subject is gathered together in one place. Once you have a command of the information to which your witness has access, then it is time to sit down and write out Illustration by Jimmy Holder 2

your areas of inquiry, focusing on the three purposes set out above. But how do you get to question formulation? From the index, create a narrative consisting of all of the points that the witness must admit to, with supporting citations. From the narrative, select points of interest. From these, select your objectives. Write out your objectives at the top of the page, one per page. Underneath, write out all of the questions that lead to the realization of each objective. Ideally, you would get to a set of one-word answers that lead to the goal. Then practice the examination to determine what works and what doesn t. I can t overemphasize how important this is and how many new lawyers neglect this aspect of preparation. Practice will lead to other formulations of questions that will narrow the focus of the examination to the desired objective. After that, re-jigger the questions and expand or contract your objectives based on your practice. Then write out every question, weeding out all expansive or unnecessary language. Put them in an order that steadily advances you toward the goal. At trial, throw away your written questions and just have a list of topics with notebooks of impeaching material behind it. Organization. Location is everything in real estate; organization is everything in persuasion; and the proper place to begin and end is everything in organization. The order and organization of what you present on cross-examination is as persuasive as the content. See H. Stern & S. Saltzburg, Trying Cases to Win: In One Volume 272, 287 (ABA 2013). Primacy and recency should govern the construction of the cross-examination. The cross-examination should begin strong and end strong. As a rule of thumb, your organization of the cross-examination, based on the rules of primacy and recency, should proceed as follows: (1) prioritize your subject matter; that is, rank your points for cross-examination from strongest to weakest; (2) lead with your strongest point; and (3) close with your second strongest point. The actual order of your examination may vary as the testimony unfolds. Your second strongest point, for instance, could present itself immediately. Techniques of Cross-Examination Control. It is no secret of cross-examination that you must establish firm control of the witness from the very outset of the cross-examination. The secret is how to do it. The answer is that you must first gain control of yourself and you must overcome your worst enemy in the courtroom: fear. See P. Malone, The Fearless Cross-Examiner: Win the Witness, Win the Case 11 22 (Trial Guides 2016). I will simply add that in the courtroom you must exude confidence from every pore. In aid of this, remember that you are a lawyer and this is a courtroom. The witness is on foreign ground and you are the home team. Also, the judge knows what you are doing. She is expecting you to ask questions and she is expecting the witness to answer; nothing more. The judge is not concerned with the elegance of civil conversation, and she is not really interested in what the witness has to say. The judge just wants the witness to answer your questions. More importantly, you have a tremendous advantage in that you are the one who decides which questions to ask and which ones to leave alone. As McElhaney puts it, you literally pick the fight because you decide what the fight is about. If you want to go after an inconsistency, go after it. Because you are the one who selects the subject matter, you should only pick areas where The true point of crossexamination is to create an appearance of the witness that makes an impression on the jury. you know you will win. If you ask questions the right way, you do all the talking and the witness agrees that all you say is true. In a good cross-examination, you are the real witness, while the one on the stand merely vouches for the accuracy of your testimony. You do this by using short leading questions that are really simple statements of fact. See McElhaney, supra, at 441. Leading questions. The first rule of control is framing your questions. I always begin framing my questions as leading questions. Leading questions at the outset of the examination enable you to show confidence and establish control of the witness. I am not unaware of the shortfalls of the slavish use of leading questions, but knowing how to ask leading questions is essential to lay the groundwork for new attorneys learning the ropes of cross-examination. But the real secret here is not merely leading questions; and in this respect, it is not really about questions at all. It is about a series of statements that the witness must respond to with short answers. Successful navigation of this aspect of cross-examination is half the battle. The key is to break your questions down into small, bite-sized pieces that require the witness to respond with short answers. Break down every sentence into a series of one-word statements. Do not ask open-ended why questions at trial. This should have been done at the deposition. 3

Such open-ended questions are generally used at trial only in three circumstances: (1) when you don t care what the answer is; (2) when the answer can t hurt you; or (3) in transitions. I cannot overemphasize to keep your questions short. The length of the question usually determines the length of the answer. Eliminate prefaces and clauses and use transitions. Keep up a decent pace. Your statement should promptly follow the witness s answer. Also, listen carefully to everything the witness says because the witness s answers often provide the best material for new lines of questions. You will also want to follow up dodges and run down evasive answers. Also, understand that you re not merely reading a script. You are painting a picture using body language to act it out. Therefore, do not be afraid to use body language such as eye contact, stop signs and other hand motions, and headshakes to make your points. Transitions. A critical tool to be used in conjunction with leading questions is the transition. A transition is simply a statement announcing the questioner s intent to enter into a new area of inquiry. There is no trial advocacy tool more helpful to crossexamination than the transition, and transitions are exceptionally helpful on direct. After a transition, additional words become less necessary and even redundant. This makes the questioning more amenable to short leading questions. Transitions are relatively simple. Let s look at the Justice Department s Miriam Vishio examine an executive vice president of Aetna. Q: Mr. [Witness], I want to focus my next series of questions on pre-complaint discussions that you had both internally and externally about the impact of a DOJ lawsuit on Aetna s exchanges footprint. Now, in the months before the DOJ complaint was filed on July 21, you and others at Aetna had conversations with [the Secretary of] the Department of Health and Human Services about Aetna s participation on the individual exchanges. Is that right? Looping. Another tool used effectively with leading questions is the technique known as looping. Looping is easy to describe, to explain, and to demonstrate. By looping, we merely repeat an important or operative term or theme elicited in the testimony in a number of follow-up questions. Cross-examiners want short storytelling statements from their witnesses. Trial lawyers know that not everything that is said is of equal importance; not all facts are created equal. Also, the jury has a short attention span and quickly forgets. Finally, we know there are themes that are extremely important to the story we are telling. These are the themes that we want the jurors to remember. We help them to remember what we deem important by looping questions. A simple example comes from Justice Department attorney Eric Welsh s examination of the senior vice president of Medicare operations for Aetna. One of the most important issues in the case was whether Medicare Advantage (MA) was a distinct product market for antitrust purposes. Welsh is examining on a document showing Aetna competitors. Q: So the company that s on the top is the one that has the highest market share; isn t that true? A: That s correct. Q: And then it progresses down to the bottom with the lowest of market share; right? A: In terms of MA market share, yes. Q: Right. And that s what this document is reflecting here. It s reflecting your top competitors and how Aetna compares to its top competitors in the Medicare Advantage market; right? A: Exclusively in the Medicare Advantage market. Q: Okay. And so you ve got not only your ranking of the top competitors in the Medicare Advantage market but you have your market shares as well attributed to each of these companies for that Medicare Advantage market; right? A: Right. I mean, these are MA competitors but not our only competitors. Q: Well, on your Medicare Advantage competitors, which that s all that we have on this page, right, is Medicare Advantage competitors; correct? Dealing with an uncooperative witness. Oftentimes, however, the witness is not completely willing to go along with leading questions. Adverse statements by a witness on cross-examination are inevitable, and the modes of uncooperativeness are limitless. The secret in such cases, however, might not be what you would expect. The lesson here is patience and politeness. You have to expect that a witness called by the other side will not always agree with all of your points. But do not take the witness s nonresponsive answer as a personal affront. Evasion is a natural phenomenon and the jury will most likely know that. Do not attempt to run roughshod over a witness merely because the witness has disagreed with you. Rather, the modus operandi in such cases is to kill them with kindness. Remember that the goal of cross-examination is not just to garner information but to create an impression for the jury. With the uncooperative witness, too much control will give the wrong impression. There is a whole spate of the things that you may have seen in the movies that you should not do with the evasive witness: browbeat or bully; use sarcasm; insist on your own terms; cut the witness off; insist on yes or no answers; or ask the judge for help with the witness. See McElhaney, supra, at 449. So the object here is to temper control with cordiality and 4

patience. Here are some common examples of evasive behavior along with suggested solutions. 1. If the witness doesn t remember a fact from his deposition, refresh his recollection. 2. If the witness contradicts his deposition testimony, impeach him! 3. If the witness changes his testimony from that of his deposition with an explanation ( Yes, I said that in my deposition, but I now believe otherwise ), this presents a variation of the impeachment theme. Just because he changes his testimony before he answers your question doesn t mean you can t still impeach him with his prior testimony. Emphasize the flipflop nature of the testimony and that he changed it only after he consulted with his lawyers. 4. If the witness says he does not understand your question, immediately apologize and offer to rephrase the question: Sorry, let me rephrase the question. 5. If the witness quibbles with words in your question ( What do you mean by important? ), do not engage him. Try to ignore questions from the witness and remember that jurors do not like witnesses who advocate. Instead, rephrase the question and define the term as the witness understands it. Let me rephrase...., then define important the way the witness has used it. 6. If the witness asks to explain his answer ( Do you want me to explain my answer? ; Don t you want to understand so the Court can hear the full story? ), sidestep the question by telling him that you will get to that later. Reject all requests to explain an answer; if the witness merely requests to explain, you do not need to accommodate him. 7. If the witness rambles on in a harmless but time-wasting way, don t cut him off! Refocus his attention on the subject of your question: So the answer to my question is yes? My question was... Did you understand my question? 8. If the witness seeks to add harmful testimony ( Yes, but that doesn t matter because seniors can always switch to Original Medicare ), again don t cut him off! Object and move to strike as nonresponsive only if it hurts. When a witness volunteers evidence that is inadmissible and damaging, you must object and move to strike. But you must be careful with motions to strike as they may be denied or only reemphasize the testimony for the jury. When a witness volunteers answers that are admissible but merely nonresponsive and not harmful, you should demonstrate that the witness is biased, by asking the same question again and again. Refocus the witness with That s not what I asked you. Let s try again. 9. If the witness asks you a question ( Why don t you tell us what we are doing here today, counsel? ), don t answer it! If you answer his question, you might as well change places with him in the witness box. These questions can be most uncomfortable. Again, try to ignore them and strike the answer only if it hurts. Try to refocus the witness s attention on the question with Let s try this again, or Let me rephrase the question, etc. Use of Documents in Cross-Examination Another secret essential to successful cross-examination is command of the critical documents in the case. There are three principal uses of documents at trial: to explain, interpret, or elaborate on what is written; to refresh recollection; and to impeach the witness. Let us take a look at each of these uses in turn. Explaining a document. Explaining a document can be the first and foremost use of a document on cross-examination, but it can give fits to the uninitiated questioner. Why such problems? Inexperienced examiners most often get into trouble because they try to get the witness to merely read the document into evidence. This is not a permissible use of a document at trial (the old the document speaks for itself objection). The proper use is to have the witness explain, interpret, or elaborate on what is written. The critical understanding here is that you may use documents to highlight the evidence that you want the judge to pay attention to. In antitrust cases, for instance, where there is a mass of documents that the judge must look at, a commonly used and acceptable method of highlighting the evidence is to have witnesses go over their documents. But you can t just have them read their written words into evidence. The secret is to identify the document for the record. Direct the witness s attention to the specific language in the document that you want to discuss. Then ask the witness specific questions about the particular language. Let s take another example from the Aetna trial. In this instance, Ryan Kantor of the Justice Department is examining the chief financial officer of Molina Healthcare. In the merger trial, Aetna presented Molina as a viable candidate for spin-off of certain of its business assets that competed with Humana. The Justice Department argued that Molina lacked the administrative expertise to handle the business that Aetna proposed to sell it. Q: Let s walk through your memo dated July 5, 2016. This is PX 81. It s the first tab in your binder. And on the first page, this is an e-mail from [one Molina employee to another] and others. Are we in the same place right now? 5

Q: The first line of the e-mail says, Please find attached a letter that [the witness] wrote to the board for the Project Mesa discussion yesterday. What does Project Mesa refer to? A: Project Mesa was our internal code name, I guess, for the transaction. Q: And do you see the next three pages of this exhibit, this is pages 3327 through 3329, is a memo? A: I see that, yes. Q: Did you write that memo? A: I did. Q: Do you see on the first page, on 3327, I d like to focus you on a sentence in the second-to-last paragraph. This is midway through. It says, We are assuming that they keep a plan that has better performance. Do you see that? A: Yes, I do. Q: And here you re conveying to the board your belief that in each county that gets divested, Aetna will choose to sell to Molina the worst-performing plan. Is that right? Q: And then moving down a bit on this page, in the middle of the last paragraph on the page, do you see the sentence that starts Aetna and Humana? Q: Okay. And it says, Aetna and Humana have had many years to build up name recognition, provider and broker relationships, as well as efficient processes. While we have been in the managed Medicare market for 10 years, we do not have the same level of administrative expertise. Do you see that? A: I see that. Q: And here you re conveying to the board that Molina does not have the same level of administrative expertise as Humana and Aetna. Right? Refreshing recollection. Refreshing recollection is necessary when the witness knows a fact but has a memory lapse on the stand and the lawyer knows of a document that will jog her memory. The most effective sequence is to first mark the document, if not in evidence. Give opposing counsel a copy (although this is usually not necessary with a deposition). Give the witness the refreshing document. Tell the judge what you are doing and let him know where he can find the document himself. Ask to approach the witness. As you approach, describe what the document is. The witness reads the pertinent part of the refreshing document to herself. A common error is to give the document to the witness, who then immediately begins reading it aloud into the record. Stop the witness from testifying from the refreshing document by retrieving it from her. With a friendly witness, you must ask if the document has revived her memory, and the witness must state that her memory is now refreshed. This is not essential on cross-examination, where you should just ask the witness the question again. Finally, the witness testifies without further aid of the document. If the witness still won t acknowledge, then impeach her with the deposition testimony! The following example comes from Justin Heipp, a lawyer with the Justice Department doing one of his first cross-examinations in the Aetna trial. Justin is examining an Aetna senior marketing executive on the effect of her offering a particular Medicare Supplement (Med Supp) program in the Atlanta area. His point is that Aetna was discouraged from using it because it attracted high medical services users ( high utilizers ). Q: So you don t think the plan has attracted high utilizers? A: I don t know. Q: Maybe it would refresh your recollection if I show you a document. Mr. Heipp: Your Honor, I have a document here that s not been admitted into evidence, but I m going to use it to refresh the witness s recollection. The Court: All right. Mr. Heipp: I ll hand a couple of copies to counsel. May I approach, Your Honor? The Court: You may. By Mr. Heipp: Q: Ms. [Witness], I ve handed you what has been marked for identification purposes only as Plaintiff s Exhibit 703. If I can direct your attention to the third page of the document, to the e-mail at the top of the page, it s an e-mail from you to [another Aetna employee] and others from June 15 of 2016. Do you see where I m at? Q: If you could read that e-mail just to yourself and then look up at me when you ve finished. (Witness reviewing document.) Q: Okay, Ms. [Witness]. You can put that document to the side. Having reviewed that document, the plan that you designed to compete for Med Supp members, it s attracted high medical utilizers. The [sic] correct? Impeachment with a prior inconsistent statement. The most common way to contradict the direct testimony of an adverse witness, or to compel him to agree with your assertions on cross-examination, is to use the prior inconsistent statement. For this reason, the first order of business for the cross-examiner must be to organize all potentially inconsistent statements as discussed above. Having properly prepared the witness s prior 6

testimony, the examiner is now in position to compel the witness to give him the answers he wants or to force him to disown his prior testimony. But the secret of impeachment is that it is the weapon of last resort, not the first. Therefore, you should be loath to use it. If the witness follows the script you have laid out for him, there is no need for the nuclear option of impeachment. But there usually does come a time when you have to actually attack the witness. When you do, be sure you really need to do it. And if you do it, make sure you win. If you are going to attack the king, make sure you kill him. As a preliminary matter, make sure the witness s testimony is inconsistent with his prior statement and that the subject matter is important. Nothing will erode the jury s confidence in you faster than making trivial points or reading consistent statements into the record on the mistaken premise that they are impeaching. Next, prioritize your information by category. Pick the top prospects, rank them, and lay out the impeachment, page and line. Commit the witness to the inconsistent statement, reference the impeaching statement, and confront the witness with the inconsistent statement. You do not need to show it to the witness. Do not ask him to confirm or deny it. Just read it into the record. Note the page and line for opposing counsel. Offer the question and answer into evidence both for impeachment and, if appropriate, as substantive evidence as an admission of a party opponent. To maximize the impact on the jury, the impeachment must be immediate. Ideally, the impeachment can be put entirely into one question so that the witness has no chance to spoil the impeachment before it is fully made and appreciated by the jurors. Let s look at another example from Miriam Vishio s examination of an executive vice president of Aetna. Q: Mr. [Witness], my question was in your view was it an important factor for [the president of Aetna] that Aetna keep its options open to re-enter the market? A: In my view, no. Q: Now, when you were deposed on October 27 in this matter, you testified that it was an important factor to [Aetna s president] in your view. Would you please pull up Mr. [Witness ] October 27 deposition on the screen. And again, it s not for the gallery.... Q: You were asked, So the ability to reenter these markets was, in your view, an important factor for [Aetna s president]? Objection to form. Answer: To keep the option open, yes. Ms. Vishio: Your Honor, I move to admit into evidence page 65, lines 3 through 7 of Mr. [Witness s] October 27, 2016, deposition for impeachment purposes as well as the substance of the testimony as a party admission. Notice how there is no need for the witness after the impeachment begins. Bringing the deposition up on the screen was for the benefit of the court and opposing counsel, not the witness. This is the modern way to impeach with a deposition. The impact is immediate, and the jury cannot miss the contradiction. By referring to the page and lines, you have ensured that your adversary does not interrupt by requesting that information. From the moment you elicit the inconsistency, the witness fades out of the picture. You do not need to ask the witness any more questions. From then on, you are making an evidentiary presentation to the judge. Under the Federal Rules, the witness s prior inconsistent statement can be received into evidence to assess not only the witness s credibility under Federal Rule of Civil Procedure 32(a)(1) and (2) but also, if applicable, the truth of the prior assertion. Fed. R. Evid. 801(d)(1). See Fine, The Great Engine That Drives the Truth, 32 Litigation, No. 2, Winter 2006, at 3, 75; Stern & Saltzburg, supra, at 294 96. Not too long ago, we were all taught to use a big windup for impeachment with a prior inconsistent statement through a system called crediting the impeaching statement. Long windups to impeachment are out of favor today. Such preparatory embellishment bores the jury and telegraphs your intentions to the witness and his attorney. Now the preferred method is to just step right up and confront the witness. The jury is expecting it; and, besides, you can provide crediting embellishment after you have impeached the witness. One of the more common mistakes inexperienced lawyers make is to show the impeaching material to the witness. If he couldn t remember his testimony before, the witness now can see the relevant portion and will explain the inconsistency if he can before any further questions are asked, spoiling the impeachment. The crossexaminer is no longer required to confront the witness with the prior inconsistent statement before impeaching him with it. Modern evidence codes and the Federal Rules reject the rule in Queen Caroline s Case (2 Br. & B. 284, 129 Eng. Rep. 976 (1820)), which formerly had required disclosure. See, e.g., Fed. R. Evid. 613(a). Conclusion There are as many styles of cross-examination as there are trial lawyers. So the final secret is that, in the end, you must develop your own personalized style of cross-examination. I have been battling in the courtrooms of this country for more than 40 years, but the majesty and intrigue of Wigmore s engine have never faded for me. I hope that this practical guide will help you to develop your own style of cross-examination and to avoid its pitfalls the next time you are called upon to cross-examine a witness. q 7