chaptering your cross

Chaptering Your Cross

The whole kit and caboodle

Michael DeBlis III, Esq.


• Trial Lawyer

• Actor

• Author

• NCDC Graduate

• Collegiate Hockey Player

• Marathon runner

Chapter Method Defined

• Cross-examination is a series of small discussions (chapters) on individual topics of importance to you as the cross-examiner.

• It moves from topic to topic, not always in chronological order.

• It seldom covers everything a witness might know about the case.


• Chapters sometimes relate to each other.

• Sometimes the transition from one chapter to another chapter happens unexpectedly.

• For those who like certainty, chapters have a beginning and an end.

• The beginning and end of each chapter are prepared before the cross-examination begins.


• The chapters are designed to maximize the good evidence available.

• As a result, they don’t trail off and lull the jury to sleep. Instead, they end on a “high note.”


• Think about it. A chapter that has not accomplished its purpose using the best facts available is not miraculously going to get better through additional questions.

• If the best evidence didn’t work, then chances are the second best evidence, or worse yet, the unknown evidence, is going to go down in flames.


• The individual topics within a cross-examination are like the scenes in a play. Each chapter has a unique purpose or goal.

• The chapter method of cross-examination is not a foot loose and fancy free style. In this sense, it is similar to the slogan on billboards in airports throughout the country, “Winging it is not an emergency plan.” Instead, the wisdom behind the chapter method is that it is the optimum teachingmodel.


• This is not to say that an attorney who doesn’t use the chapter method of cross is destined to fail. He may still score important points, but not in any particular order. As a result, the jurors will be left with the unenviable task of reassembling the facts so that they make sense to them and conform with their belief systems – all in the name of a desperate attempt to understand the points made by the attorney. Sounds painful.

Chapter Defined

• Cross examination is a series of goal-oriented exercises.

• Each of these exercises is a group of related facts that is organized to establish one specific point that advances the theory of your case.

• Each chapter consists of a series of leadingquestions.

• Topics are not limited to a single chapter. Any one topic may be presented through one or more chapters.

Chapter Defined

• What are some examples of a chapter “goal”?

– To prove the existence of a fact;

– To build a solid body of facts that will allow the jury to make a favorable inference;

– To introduce facts that will weaken or undermine the jury’s belief in an alternative theory advanced by your adversary; or

– To establish facts that discredit a witness.

Chapter Defined

• Essentially … a chapter gathers together a group of facts that leads the jury to an inescapable conclusion, even if that conclusion is not admitted by the witness.

• Sounds sneaky, but it isn’t.

• Each chapter should advance an individual theme that supports the theory of the case.

Definition of a Chapter Bundle

• A chapter bundle consists of related chapters that, when read together, paints a full and colorful picture of a topic.

• A single topic within a cross-examination may require several chapters.

Chapter Method Gives Cross-Examiner Control Over Topics

• The chapter method requires self-discipline. It demands that the cross-examination be a controlled series of questions designed to satisfy a goal.

• The goal is to either:

– Support your client’s theory of the case; or

– Attack your adversary’s theory of the case.

Chapter Method Gives Cross-Examiner Control Over Topics

• The beauty of the chapter method is that you can select only those areas that you believe are ripe for cross-examination and then divide them into individual chapters.

• This ensures that only the topics that are important to the theory of your case will be discussed.

Chapter Method Gives Cross-Examiner Control Over Witness

• The chapter method is critical for establishing control of the witness.

• This is accomplished by grouping questions into narrow fields.

• You can cross-examine hostile witnesses in areas of your choosing without the witness usurping control and steering the cross into areas of his choosing.

Chapter Method Builds Support for Your Theory of the Case

• There is a “proving” aspect to cross-examination. When there is a gap in the story being told by the witness on direct, you may insert into the case facts which fill that gap and “prove” some further aspect of the story.

• By adding certain facts to those already presented, you can change the conclusions that the jury forms.

Better Use of Available Facts

• The chapter method requires discipline. It requires a deeper understanding and use of facts.

• More thorough analysis of facts is required.

• There is a difference between knowing the facts and analyzing the facts.

• You can know the facts without ever analyzing them.


• What does it mean to “analyze the facts?”

– Compare the facts to one another;

– Reorganize and group the facts into bundles of related facts, so that different or stronger conclusions may be drawn from them;

– These bundles of related facts (i.e., chapters) allow the jury to enjoy a real-time understanding of their significance to your theory of the case;


– As a bonus, you can easily pivot and reorder the sequences of your cross-examination on the fly.

Purpose of a Chapter

• A chapter is a group of leading questions designed to accomplish a goal.

• The goal may be to:

– Highlight a fact;

– Dispute or undermine a fact;

– Introduce a new fact;

– Enhance or undermine the credibility of a witness;

– Assist the jury in understanding the importance of the facts as they relate to the opposing theory of the case.


• A chapter is only worth doing if it advances your theory of the case or undermines your adversary’s theory of the case.

• The purpose of drafting a chapter is to use the best available evidence to help the jury accept the goal.

• In the process of establishing the goal, you may establish several ancillary points.


• For example, impeachment by inconsistent statement establishes the goal of showing that the prior statement of the witness was more believable than the statement made by the witness in court on direct examination.

• Simultaneously, it discredits the witness by showing that the witness has previously testified in a manner inconsistent with their current testimony.


• Each chapter is an organized sequence of leading questions designed to put into context the significance of the goal of that chapter.

• The cross-examiner must compile the facts that relate to each other so that the jury does not have to be left organizing an endless array of facts in a way that makes sense to them.

Breaking Cases Into Understandable Parts

• An entire case contains a voluminous amount of information.

• A crime, auto accident, divorce, or anything leading up to a lawsuit is not a single fact or event, but a group of facts and events that together form the case.

• Cases should first be broken down into their individual components.

Breaking Cases Into Understandable Parts

• The chapter method allows the trial lawyer to divide even the most complex case into smaller parts that are more easily digestible. This allows the jury to gain a more thorough understanding of the entire case without suffering a migraine.

Developing Chapters: The Process

• One method for identifying potential chapters consists of the following:– (1) Divide the case into its pivotal moments. A

single scenario may consist of numerous events.

– (2) Divide the pivotal moments into their individual parts. A single event may contain hidden gems that may only be discovered when analyzing it on a granular level.

– (3) Analyze the individual parts for helpful issues. A single issue may require more than one chapter.


• Let’s apply these steps to a commercial case involving an allegation brought by shareholders that corporate executives deliberately concealed from them the company’s anemic financial health.

• This case study comes from the creative genius of Larry Pozner and Roger Dodd in their runaway best-seller, “Cross Examination: Science And Techniques.”


• This case involves the prosecution of the corporate executives. You are the Assistant U.S. Attorney.

• Suppose the theory of the case is that in order to keep its share price up, the corporation deceived the market.


• This theory depends upon a great number of facts:– (1) The CFO met with an outside auditor who

reported very troubling financial news concerning the company;

– (2) During this meeting, the auditor reported numerous bookkeeping irregularities;

– (3) These irregularities consisted of several erroneous bookkeeping entries (i.e., they “cooked the books”)


• Let’s analyze these facts under the three-step analysis:

– (1) A single important scenario

• The meeting between the outside auditor and the CFO

– (2) A single component event in that important scenario

• The auditor reported on the bookkeeping entries vis-a-vis the sales of computers to ABC Corp.


– (3) A single good issue within that component may require more than one chapter:• The single sale of computers to ABC Corp. gave rise to

the following bookkeeping irregularities:

– Chapter 1: The sale was booked on the last day of the corporate year, but the contract was not signed until 30 days into the following corporate year.

– Chapter 2: The sale was booked in an amount that was exponentially higher than the contract price.

– Chapter 3: The computers were booked both as an asset in the year-end inventory and the proceeds from the sale of the computers was reported as gross income.


Commentary • This type of analysis lies at the very heart of the

chapter method of cross-examination.• What it accomplishes: Instead of talking in

general terms about bookkeeping irregularities, the attorney provides concrete factual evidence of the bookkeeping irregularities, explaining the significance of each regularity and allowing the jurors to come to their own conclusion that this was the textbook definition of “cooking the books.”

The Most Important Topics Deserve the Most Detailed Cross

• The most important topics within a case usually require more than one chapter in order to establish the goals within that topic.

• In the example above, the topic of the meeting and disclosure to the CFO that there were bookkeeping irregularities are vital to the theory of the case. It stands to reason that this topic deserves a thorough cross-examination replete with multiple chapters.


• Let’s discuss the form of the question that is put to the CFO on cross. This is by far the most challenging part of cross and where the beginner cross-examiner encounters the biggest obstacles.


• Here are two examples of how not to phrase the question:

– Q1: Did the auditor tell you about any financial irregularities?

– Critique: Too broad and surrenders control of the facts to the witness.


– Q2: Isn’t it true that the auditor told you about some problems with the Microsanct contract?

– Critique: Squanders a golden opportunity because this question provides no clear picture of the facts.


• The correct form of the question is more narrow.


• How do we craft narrow questions? By breaking down key moments into their individual parts, freezing these moments in time, and analyzing each of them under a microscope like a scientist analyzes a cell to determine how they relate to each other and what part of the completed puzzle each is meant to fill in order to present a clear and vivid picture of the facts that advance the theory of your case.


• After some brainstorming, here are six chapters that I came up with:

– Chapter 1: Establish importance of outside auditor. This chapter relies on specific facts that paint a clear picture of the importance of an outside auditor.


– Chapter 2: Establish the importance of the meeting. This chapter relies on facts that demonstrate how important the meeting was.

– Chapter 3: Reveals the conversation between the auditor and the CFO about the computer sale to ABC Corp.

– Chapter 4: Booking the sale before it actually happened.

– Chapter 5: Booking the sale in an inflated amount.

– Chapter 6: Double counting computers as both an asset and a sale.


• The pictures created by a cross this detailed are exquisite.


• Important observations:

– In order for the jury to understand the government’s theory of the case, the AUSA must educate them as to why these bookkeeping entries are improper. He cannot assume that the jury will automatically know that these bookkeeping entries were a flagrant attempt at distorting the financial health and well-being of an otherwise anemic company.


– The heart of the case is the individual events that are deemed to be fraudulent. Each fraud must be highlighted by drafting chapters that marshal together the individual facts that establish that fraud.

What topics are ripe for cross-examination?

• Examples:

– In an eyewitness case where the defense is mistaken identification, the lawyer’s thoughts should turn to drafting chapters on inconsistencies. Each area of inconsistency, such as height, weight, or facial hair, may deserve its own chapter.

What topics are ripe for cross-examination?

– In a self-defense case, the vitriolic words uttered by the deceased victim will be deserving of a chapter or two.

– When defending a case where the government’s chief witness is a “snitch,” his or her prior bad acts are ripe for the picking and will be fertile areas for cross-examination.

Putting Facts Into Context

• There are some facts that only take on meaning when viewed in relation (or comparison) to other facts, testimony, or exhibits.


• Consider the following example that is based on a similar example presented by Pozner and Dodd in their book, “Cross-Examination: Science And Techniques”:

• A witness has turned to the “dark side” and has become a witness for the State. He testified that he assisted Danny Defendant in robbing the Chase Bank before Danny asked him to be his getaway driver, and based on their friendship he agreed.


• Buried under a mountain of discovery is a statement taken by the cooperating witness where he says that he despised Danny, ever since Danny beat him up in a bar fight a couple of years before the robbery.

• When viewed in isolation, the first paragraph may be utterly useless.


• However, when the two paragraphs are compared, both events may warrant cross-examination because they relate to each other and cast doubt on the witness’s version that the only reason he cooperated with Danny was because Danny was his friend.


• Here, the strategy is to describe the bar fight in such exquisite detail that the contempt the witness has for Danny is so palpable that the jury can taste it. They should have no other choice but to summarily dismiss the witness’s story as to why he went along with Danny as an accomplice to this crime.

Overcoming The Urge to Conduct a Global Cross Examination

• Less experienced trial lawyers have a tendency to cross-examine in global terms.

• What is a global cross-examination? A cross-examination that attempts to summarize a point in conclusory terms, instead of establishing facts with the degree of specificity so as to allow the jury to arrive at the conclusion on its own.


• Global cross-examination questions can be identified from a mile away because they contain few, if any facts and attempt to get the witness to agree with a conclusion.

• Here is an example of a global cross-examination question: “You were driving negligently?”


• Criticism: This is a loaded question because negligence consists of duty, breach, causation, and damages.


• The fewer the facts, the more likely the witness is to “push back” and become uncooperative by giving unfavorable answers.

• Moreover, the cross-examiner squanders a golden opportunity: advancing favorable facts.

• Global methods of cross-examination surrender control of the cross-examination to the witness.


• Proceeding one fact at a time, while slow and tedious, is more engaging because it allows the cross-examiner to cover the best material thoroughly, accurately, and completely.


• Before you can transition from the “old” way to the chapter method of cross, you must break your case down into specific and concrete goals.

• Each goal must be assigned at least one chapter of cross-examination. However, some goals may require a group of chapters, in what is commonly referred to as “bundles.”


• For example, a single large event can be viewed as a series of smaller events. Each small event may deserve at least one chapter.

• Like a microscope that magnifies a cell with the resolution and clarity of an electron microscope, the chapter method allows you to analyze the individual facts that can be marshaled together to form a chapter on an unprecedented scale.


• The irony is that you may find smaller, more detailed chapters within what was once thought to be a “harmful” chapter that are actually helpful to your theory of the case.


• While chapters are built “brick by brick” one fact at a time, they are not merely one question or one fact. Instead, they are a seriesof questions and a series of facts that lead to a goal.

Do bad facts deserve a chapter?

• It depends (sorry for the lawyerly answer)

• Picture this. You are defending a case based on a theory of mistaken identification. The witness, Charlie, picked your client out of a photographic array.

• At first blush, this is absolutely devastating.


• However, what if Charlie had been told, beforearriving at the police station to view the array, that the police had a suspect (“we have arrested a suspect”), and they want to see if Charlie can pick him out of the array.


• This evidence is worthy of a chapter.

• Why? Because these facts demonstrate that when Charlie went to the police station, he went there with the expectation of “picking” somebody out of the array because the police had “the man.”


• Suppose that of the six people in the photographic array, two do not fit the description given by Charlie. Charlie described his assailant as being Hispanic and in his mid-twenties but two of the photographs in the array consist of African American men in their late thirties. In this case, you now have two additional chapters on how these individuals could easily be excluded.


• Suppose that Charlie views the array for thirteen minutes before making a positive identification of your client. This unusual length of time may deserve a chapter.


• If, after Charlie circles a number, Detective O’Brien makes a confirmatory remark such as, “Yeah, that’s what we thought,” there is yet another chapter.

• Detective O’Brien has provided assurances to Charlie that he has chosen correctly.

• Not surprisingly, Charlie will continue to “point the finger” at this “poor unfortunate sole” throughout the entire case.


• There is no question that Charlie’s selection of your client in the array is a bad fact. Undoubtedly, the prosecutor will relish the opportunity to walk Charlie through his selection of your client’s photo slowly and deliberately on direct.

• But your detailed analysis has developed multiple chapters that can cast doubt on the reliability of the array.


• At the very least, it puts the prosecutor in an awkward position. He must go back on re-direct to cover a major topic that didn’t receive so much as a whisper on direct (it was ignored). The jury will wonder, “Was the prosecutor trying to hide something from us?” The prosecutor will have to explain to the jury why his direct ominously left out multiple details that were covered on cross.


• No fact in isolation can create the vivid pictures created by chapters. Instead, you must marshal together similar facts “brick by brick” until you’ve built a chapter that advances a single goal.

How big should a chapter be?

• How big should a chapter be? Only as big as the number of good facts available to accomplish a single goal.

• Within an event, there is usually more than one important point.

• When an event or topic contains more than one goal, more than one chapter will be necessary.


• Example: Johnny, your client, was beaten by the police when he was arrested. It was captured on video.

• The actual beating of Johnny is an event that can be divided into multiple chapters.

• For example, to emphasize the barbaric and senseless nature of the beating, you might separately cross-examine on each separate blow thrown by the officers.


• After discussing the lack of rationale for the blow, the force behind the blow, the aim of the blow, how it was dished out (via kick, punch, elbow, or club), the cross-examination would move to the next blow, which represents the next chapter. In other words, you’d work your way through cross “blow by blow.”


• As you can see, the cross-examination of an officer who was an active participant in this senseless act would go well beyond a single chapter called “the beating.”

Draft Chapters Backwards

• A straight-forward way to creating chapters is to follow a four-step process introduced by Larry Pozner and Roger Dodd in their book, “Cross-examination: Science and Techniques.”

• This process can be reduced to three words: “Draft chapters backwards.”


• Here are the four steps:

– Step 1: “Identify any one single factual goal to be achieved in the course of the cross-examination that is [consistent] with the theory of the case.”

– Step 2: “Review cross-examination preparation materials for all facts that lead toward acceptance of that single factual goal.”


– Step 3: “Draft a single chapter that covers those facts, leading to the factual goal as set out.”

– Step 4: “If, while in the course of drafting a chapter an additional worthwhile goal is identified, separate that goal and its supporting material into its own chapter.”


• Most lawyers will find that they are already using these steps without even recognizing them as a “technique.”

• Such lawyers will find adopting the rest of the system to be “natural and convenient.”

Step 1: Select a Specific Factual Goal

• Good cross-examination cannot be done “on the fly” or by “winging it.” Great trial lawyers don’t stand up and begin asking random and arbitrary questions.

• Never lose site of the purpose of cross as emphasized by Pozner and Dodd: “To advance [your] theory of the case or to undermine [your] opponent’s theory of the case.”


• I hate to be the bearer of bad news but trials are never won by casting one fatal blow. Perry Mason moments have gone the way of the dinosaur.

• As Pozner and Dodd so eloquently state, “the credibility of witnesses and cases bleed to death from a thousand little pin-pricks.”


• The essential idea here is to recognize that each factual goal must be proven separately, even though it may be closely aligned to a similar goal.

• For example, if it is important to show the robber had no tattoos, then that individual topic deserves its own topic and should be drafted separately from all other chapters dealing with other characteristics of the robber’s description.


• In a non-chapter system, your notes might look something like this:

– Description

• Blue jeans

• Tattoos

• Height

• Body type


• Working from such an short-hand set of notes, the lawyer is likely to cross on these issues generally, without clearly establishing the goal.

• By asking the minimum number of questions needed to set up the goal, you will deprive the jury of the factual detail and specificity that they need to make a factual conclusion or inference that favors your theory of the case.


• It also deprives you of the opportunity to show the jury the strong command you have over the facts of the case.

• You also fail to reassure the jury that when it comes to credibility, it is best to accept your version of the facts instead of the prosecutor’s because you are candid and forthcoming.

Detailed Notes for Detailed Chapters

• Consider the following example: A prior felony conviction of a State’s witness. In order to blunt the impact of this coming out on cross, the prosecutor makes a strategic decision to elicit from his witness on direct that he has a felony conviction.

• On cross, the defense may re-establish the fact that the witness has been convicted of a felony.


• Most defense attorneys would ask the following abbreviated questions on cross:

– Q: Mr. Smith, you are a convicted felon?

– Q: In 1988, you were convicted of a robbery?

– Q: You got sentenced to prison for five years?


• While the defense attorney strictly adhered to the fundamental rules of cross-examination, you can sense that something is missing.

• While the lawyer established the goal-fact –repetition of the fact that the witness is a convicted felon – he did so without any drama.


• The felony conviction is a cold fact – it inspires no inferences. There is nothing particularly damaging about this chapter, except the fact that the witness was convicted of a robbery and served time in prison.


• In fact, if the witness has been “coached” well, he may even arouse some sympathy on the part of the jury when he says that the time he spent away from his family was unbearable and that he was counting the days before he could come home so that he could hold his newborn child in his arms. Also, he stepped up to the plate, took responsibility, and “paid [his] debt to society.”


• Can you think of a better purpose for this chapter?

• Suppose that you draft this chapter with the purpose of attacking the witness’s credibility, so that the jury will conclude that he cannot be trusted.

• However, the questions asked above contain such little detail as to amount to nothing more than a news reporter making obvious observations. We need to delve deeper!


• The summary nature of this chapter is so utterly benign that it wrung all of the emotion out of the chapter because it failed to generate any drama.

• It doesn’t show how this damning fact bears on the credibility of the witness.

• The good news is that it does not require deciphering the dead sea scrolls in order to “fix” this snafu.


• All that’s necessary is to make a few tweaks beginning with breaking down the topic of the witness’s prior felony conviction into smaller parts (i.e., divide them into additional chapters), with each chapter containing more detail and factual context.


• You may choose to break the prior felony into four separate but related chapters:

– Facts of armed robbery;

– The deal;

– The sentence; and

– The time served.


• Here’s an example of a cross-examination of each of these chapters.

Example

• You are an armed robber (Chapter heading)

– Q: I’d like to ask you some questions about October 29, 2007?

– Q: You remember that day don’t you?

– Q: That was the day you were arrested?

– Q: Not for jay walking?

– Q: Not for walking your dog without a leash?

– Q: Not for DUI?

Example

– Q: But for robbery?

– Q: On this day, you walked up with a gun in your waistband to a liquor store in your own neighborhood?

– Q: A .44 magnum revolver?

– Q: It was loaded with six bullets?

– Q: From outside the window you looked in?

– Q: You looked back?

Example

– Q: You looked all around?

– Q: You looked in and saw that there was only one man inside the store?

– Q: A middle-aged man standing behind the counter?

– Q: You went in that door, ran up to that man, and put that gun to his head?

– Q: You said, “Give me the money or I’ll blow your brains out?”

– Q: “You can bank on it.”

Example

– Q: He did as you ordered?

– Q: That armed robbery didn’t go exactly according to plan?

– Q: Because in that store you didn’t know that, although you traumatized another human being, there was a panic button under the counter?

– Q: A little button set up so that robbers can’t run roughshod over an entire part of town?

– Q: You ran out of the store?

Example

– Q: You didn’t get a half-a-block away before you heard the sirens?

– Q: You ran faster?

– Q: Within a block of that store, the police were on you?

– Q: You dropped your weapon?

– Q: You were arrested?

– Q: In one hand your gun, your trusty friend?

– Q: In the other hand, a bag of money?

– Q: Someone else’s money?

Example

– Q: You were cuffed and taken to the police station on Carson Avenue?

Example

• You Got A Deal (Chapter Heading)– Q: I’d like to talk to you about what happened on

December 15, the day of your jury trial?– Q: You got up early?– Q: You put on your trial suit?– Q: You got on the early bus to the courthouse?– Q: You knew nothing positive could happen at that

jury trial?– Q: You met with your lawyer?– Q: You discussed the case?– Q: Over and over?

Example– Q: You talked about any chance the clerk might not show

up for waiving that gun at his head and threatening his life?

– Q: You knew that wasn’t going to happen?– Q: You knew twelve jurors were going to convict you in a

skinny minute?– Q: You also knew that once you were convicted, you were

going to get the maximum sentence under the law for armed robbery?

– Q: Twenty years?– Q: Day for day?– Q: No early release for a violent felon?– Q: You were doing the math in your head as fast as you

could and said, “I guess I’ll be out some time around Halloween 2027?”

Example

– Q: Your lawyer came into the holding area early that morning?

– Q: She sat down and talked to you?

– Q: You were running through all of the things that you might say?

– Q: And what might happen if you just pleaded guilty … what you might face?

– Q: She said, “With the nature of the crime, expect the max?”

Example

– Q: You expected to pick that jury at 10 AM in Judge Smith’s courtroom on the fourth floor?

– Q: You looked for a way out?

– A: No.

– Q: Well you weren’t looking for a way into the trial were you?

– A: No.

– Q: So you looked for a way out?

Example

– Q: Your lawyer told you there are none?

– Q: But they think you might have evidence on Bobby?

– Q: They think you might know something and that might give me the leverage to help you?

– Q: You paused and you paused and you paused. And you realized, the smart thing, the only thing was to point the finger at Bobby?

Example

– Q: Let’s talk about this deal?

– Q: You’re saying that you played a major role and conspired to kill a police officer?

– Q: That carries life without any possibility of parole?

– Q: You got immunity?

– Q: That means no prosecution?

– Q: That means no charge?

– Q: For all practical purposes, it was as if you were never even there?

Example

– Q: This armed robbery that you were going to do five to twenty years day-for-day, that got wiped away?

– Q: That got downgraded to a non-violent felony?

– Q: Like a purse snatching?

– Q: Your lawyer went through the math with you?

– Q: She went through that on zero to five, worse case scenario, you get the whole five?

Example

– Q: Sixty months?

– Q: You can do that standing on your head?

Example

• You got the deal of the century! (Chapter heading)– Sixty Months Isn’t Really Sixty Months (Sub-chapter 1)

– Q: Then your lawyer went through what sixty months really means when it’s a non-violent charge?

– Q: She went through that with good time, that knocks off twenty percent of the sentence?

– Q: One year?

– Q: You’re down to 48 months?

– Q: She told you that with work credit, here’s the kicker: you don’t even have to work to get the credit. All you have to do is not refuse to work and you get ten percent off of that 48 months, right?

Example

– Q: That becomes more than four and a half months off?

– Q: You’re down to 43 months?

– Q: And that’s before early release?

– Q: Early release is for people with non-violent charges because we need the prisons filled up with violent offenders who waive guns at people and threaten lives?

Example

– Q: The early out for you non-violent guys is 50% off the 43 months?

– Q: You’re looking at 21 ½ months?

– Q: This comes as no surprise to you?

– Q: It might surprise the people in the jury box?

– Q: But it doesn’t surprise you at all?

Example

– Credit for time-served (Sub-chapter 2)– Q: You know that you get credit for this year you’ve

been incarcerated?– Q: Every day?– Q: You have eleven months and counting as of today?– Q: If you get the maximum sentence from His Honor,

the worst case scenario is that you’ll miss the next fourth of July 2009 but you’ll be home shortly after that?

– Q: And you’ll be home with no supervision?– Q: No reporting requirements?– Q: No parole or probation hassles?

Example

• Anticipated Sentence (Chapter Heading)– Q: It gets even better than next July, doesn’t it?

– Q: Because your lawyer is talking to you about this as the worst case scenario – coming home around baseball season?

– Q: Your lawyer also talked to you about the best case scenario?

– Q: The best case scenario is that as soon as this trial’s over, your lawyer is going to turn to this same judge and say, “My client played a key role for the government. Another eleven months won’t do him any good. He should be given credit for time-served and be released today?”

Example

– Q: And you expect to be released next week?

– Q: And when you come in front of His Honor after this trial is over, you’re going to walk in here and stand behind this podium?

– Q: You’re going to raise your right hand and swear to tell the truth?

– Q: You’re going to look His Honor in the eye?

– Q: Just like you looked these jurors?

– Q: Just like you looked that poor store clerk?

Example

– Q: And what are you going to say?

– Q: You’re going to say, “It’s the honest to god truth judge, I wouldn’t tell a lie. I won’t get in trouble again. Release me today?”

– Q: Are you going to say, “Judge, it’s the absolute truth. I won’t commit another crime?”

– Q: Are you going to say, “Judge, you can bank on it. I won’t be back?”

Commentary

• By breaking down the prior felony conviction, you have proven to the jury why it should not believe this witness because he has too much to lose by not telling an exaggerated tale that makes it appear as though he has firsthand knowledge of who shot and killed the police officer and that falsely incriminates your client.

Commentary

• It is far more powerful than a bare bones cross-examination that lets the witness off the hook by merely repeating what the prosecutor already established on direct: that he is a convicted felon who served a four-year prison sentence.

Commentary

• The specificity relied upon in the sample cross leaves a bad taste in the jury’s mouth that this witness manufactured an elaborate story and tried to sell it to the police.

• The way the jury feels about a witness is often more important than the intellectual response.

Example of a Complex Character Impeachment

• A more complex example of the need to divide a matter into individual chapters and how to orchestrate that division is found in this next hypothetical.

• This hypothetical comes from the creative genius of the instructors at the National Criminal Defense College in Macon, Georgia.


STATE V. ROBINSON

• Facts: You represent Bobby Robinson. Robinson has been charged with murder in the first degree of a police officer and is on trial in federal court. The government alleges that in Carson City on October 15 of last year, Robinson shot an on-duty police officer in the head, killing him instantly.


• Samuel King is a witness for the state. On direct examination, he testified that on the evening of October 15, at about 9:00 p.m., he and Robinson walked up to a marked police car parked on the east side of Third Street, just south of Main Street.


• Pursuant to their plan, King opened the passenger door of the police car and Robinsonpulled a .38 revolver from his jacket pocket and shot the police officer in the head.

• King was arrested for an armed robbery of a liquor store on October 29. He was apprehended running out of the store with a gun in his hand.


• On December 15, the day his armed robbery charge was set for trial in state court, King agreed to become a witness for the U.S. government in its federal case against Robinson.

• King gave a statement to the police on October 29 following his arrest, and testified concerning the Robinson case before the grand jury on December 2. His statement and a transcript of his grand jury testimony follow.


• STATEMENT OF Samuel King TAKEN ON October 29, (last year) AT CARSON AVENUE POLICE STATION

• QUESTIONS ASKED BY OFFICER George Cameron:– Q. What is your name?

– A. Samuel King.

– Q. How old are you?

– A. Twenty-five.


– Q. I am going to ask you some questions about the killing of a police officer on the corner of Third and Main Streets on October 15 of this year.

– A. I don't know anything about that.

– Q. Were you anywhere near that corner on October 15th of this year at about nine o'clock?

– A. No. I think I was at a movie on the South Side with my girlfriend.

– Q. Do you have any information at all about the killing of a police officer on that night?

– A. I didn't even know a police officer was killed until you told me about it a few minutes ago.


– Q. Do you have anything to add?

– A. No. I have told you the absolute truth.


• Grand Jury TRANSCRIPT OF TESTIMONY TAKEN DECEMBER 2, (last year)

• PRESENT: Mr. Robert Thompson, Assistant State's Attorney

• Reported by Mary Jones, stenographer

• WITNESS: Samuel King


• Samuel King, having been first duly sworn and examined, testified as follows:

• By Mr. Thompson:– Q. What is your name?

– A. Samuel King.

– Q. I call your attention to October 15, at around 9:00 p.m. Where were you at that time?

– A. I spent the entire evening on the South Side of Carson City. I think I went to a movie with my girlfriend.


– Q. Were you anywhere near Main and Third Streets on that date?

– A. No, sir. I was nowhere near that neighborhood any time that day.

– Q. Do you have any information about the killing of a police officer at Main and Third Streets on October 15, or any other day?

– A. No. I don't know anything about it.


– Q. Have you heard anything about the killing of a police officer on October 15, around Main and Third Streets?

– A. The first I heard of that was when the policeman told me on the day I was arrested.

– Q. Is there anything you wish to add?

– A. No. I have told you the honest-to-God truth.


• Statement Made To Police Officer (Chapter 1)– Recommit

• Q: On direct examination, you said that you decided to start telling the truth on December 15, 2007?

• Q: That before 12/15/07, you hadn’t had that moment where you decided to come clean?

• Q: You hadn’t had that moment where you decided to be candid? • Q: You hadn’t had that moment where you thought you’d just get

this off your chest?

– Accredit• Q: On October 29, 2007, you were caught fleeing the scene of an

armed robbery?• Q: You weren’t a full block from the store when the police caught

you?


• Q: You dropped your weapon?

• Q: You were arrested?

• Q: In one hand your gun, your trusty friend?

• Q: In the other hand, a bag of money?

• Q: Someone else’s money?

• Q: You were cuffed and taken to the police station on Carson Avenue?


• Q: You were booked?

• Q: Printed?

• Q: Had your photo taken?

• Q: While cuffed, you were led down a hall?

• Q: To a room?

• Q: An interview room?

• Q: You sat there cuffed wondering what was going to happen?

• Q: Wondering whether you were going to get out from under this any way?


• Q: After a while, a detective came in?

• Q: He uncuffed you?

• Q: He looked you in the eye?

• Q: He told you that he had important questions for you?

• Q: He told you that he had important questions about a police officer who was killed in the line of duty?

• Q: He told you that he had important questions about a police officer killed in the line of duty on October 15, 2007?

• Q: Two weeks before this armed robbery?


• Q: At this point, you didn’t say, “Boy officer, thanks for asking but I have a fifth amendment right to protect myself from incrimination so I will not be speaking to you today?”

• Q: You didn’t say, “I have some information. Let me get together with my lawyer. Maybe he can work something out?”

• Q: You didn’t say that either?

• Q: You didn’t say, “I got real good stuff. Bobby did it! Bobby killed that cop in cold blood.” You didn’t say that did you?


– Confront

• Q: Let’s talk about what you did say in that room?

• Q: You’ve seen a copy of your transcript from this interview?

• Q: The prosecutor went over it with you this morning and yesterday and last week when you met with him, too?

• Q: The officer said to you, “I’m going to ask you some questions about the killing of the police officer on the corner of third and Main St. on October 15?”


• Q: You said, “I don’t know anything about it?”

• Q: He said, “Were you anywhere near that corner on October 15?”

• Q: You said, “No, I was at the movie on the south side?”

• Q: Do you have any information at all that can help us in this case?

• Q: And you said, “I didn’t even know that an officer had been killed until you told me a few minutes ago?”


• Q: You looked him in the eye and that’s what you told that officer?

• Q: At that point, you were caught red-handed on an armed robbery and needed a way out?

• Q: He asked if you had anything else to add and you said, “No. I’ve told you the absolute truth.”

• Q: Absolute truth – your words right?

• Q: On Oct. 29, 2007, the absolute truth was that you didn’t know anything about the killing of a police officer?


• Q: How was that officer who was trying to solve the homicide of a fellow officer supposed to have known that you were lying on Oct. 29 when you looked him in the eye and told him the absolute truth that you didn’t know anything about it?


• Grand Jury Testimony (Chapter 2)

– Recommit

• Q: On direct examination, you said that you decided to start telling the truth on December 15, 2007?

• Q: That before 12/15/07, you hadn’t had that moment where you decided to come clean?

• Q: You hadn’t had that moment where you decided to be candid?

• Q: You hadn’t had that moment where you thought you’d just get this off your chest?


– Accredit

• Q: I want to talk to you about Dec. 2, 2007?

• Q: On that day, you were taken to the grand jury room?

• Q: You came over to the courthouse on the early bus?• Q: You got to that courthouse in your fine suit and were brought to

the third floor?

• Q: In that grand jury room was Mr. Smith, the prosecutor in this very case?

• Q: Mr. Smith had questions for you?


• Q: Before he started asking you any questions, he did something?

• Q: He put you in that witness chair and put you under oath?

• Q: You know what an oath is?

• Q: It’s a promise?

• Q: A sacred promise?

• Q: On the Bible. To tell the truth?

• Q: Not the convenient truth?

• Q: The honest to God truth?


• Q: On that day, the jury box looked a little different than it does today because there weren’t just twelve people?

• Q: There were 23 people?

• Q: You got in that jury box and you took your oath and you made eye contact with those 23 people and you talked to them?

• Q: You talked to them not about your life story but about Oct. 15, 2007?

• Q: You didn’t say, “Lades and gentlemen of the grand jury, I got some really important information. Bobby killed that police officer and I can put him there.” You didn’t say that?


– Confront

• Q: Let’s talk about what you did say?

• Q: You reviewed this transcript with the prosecutor this morning, right. And yesterday. And last week?

• Q: And you talked about how you were going to explain how your answers under oath today were different than your answers a year ago?

• Q: You had a conversation with Mr. Smith about that?


• Q: Mr. Smith asked you, “On Oct. 29 at 9:15 PM, where were you at that time?” Your answer was, “I was on the south side of Carson city. I think I went to a movie?”

• Q: That’s what you told him?

• Q: He said, “Were you anywhere near Main and Third?”

• Q: Answer, “No sir?”

• Q: He said, “Do you have any information at all relating to the killing of the police officer in the line of duty on Oct. 15?”

• Q: Your answer was, “No I don’t have any information about that?”


• Q: “Have you heard anything about the killing of this police officer? I didn’t hear anything about the killing of this officer until I was arrested on Oct. 29 and the police told me they were looking for the person who killed the police officer.”

• Q: That was your answer?

• Q: “Is there anything you wish to add?”

• Q: Your answer was, “No, I have told you the honest to God truth?”

Each Chapter Needs a Title

• Each chapter has one factual goal

• The materials collected for chapters are not disparate fragments, but instead facts related to each other

• Chapter titles are useful not only in preparing for cross-examination but for closing arguments as well

• Because the cross-examiner has identified the chapters that advance his theory of the case, the same topics can be used in closing argument

Step 2: Building a Chapter

• Rule: Review discovery in search of facts that inescapably lead to acceptance of a single factual goal for each chapter

• Drafting chapters for cross-examination is a spiraling process

• The question is this, “Can discovery be organized into useful categories before you’ve established your goals for cross-examination or should goals be determined after discovery has been reviewed?”


• Personally, I begin by reviewing the discovery and doing a client intake interview.

• This helps me brainstorm a general theory of the case, such as “self-defense.”

• This initial theory suggests obvious goals. These goals, in turn, help me to narrow my search of the discovery for helpful cross-examination material


• As I sort the discovery into groups that further a specific goal, more goals are identified. This results in additional groupings.

• Preparation for cross-examination is not a linear process. Sparks will begin to fly inside your head like electrons spinning around the nucleus of an atom.

• One chapter may inspire another chapter.


• As you are drafting a chapter, you may recognize that it has more than one goal. New goals may require their own chapters.

• This can become harrowing. In order to preserve your sanity, I recommend keeping a notepad on the side so that if a fresh idea pops into your head, you can write it down before it becomes lost in the deepest recesses of your mind never to surface again.

Chapters Give Clarity to an Event

• How do you uncover facts that further or advance a factual goal?

• I do this by viewing a chapter as a scene out of a play. In doing so, I go on the hunt for facts that breathe life into the scene.

• The goal is to make the scene more vivid for the jury.


• Ambiguity is to the cross-examiner what fear is to the actor: an unwanted guest.

• Chapters, by their very nature, seek to shine a light on an ambiguous aspect of direct examination. If the cross-examiner wanted a witness’s testimony on direct to remain murky, then he wouldn’t have cross-examined on it in the first place.


• Inherent in a cross-examiner’s decision to cross-examine a witness on a particular topic is the notion that he has made a strategic decision to emphasize a goal more fully than it was discussed on direct examination.


• Of course, the version presented on cross may be diametrically opposite to the one presented on direct, thus creating an ambiguity as to the realityof that fact. But that’s why you’re having a trial in the first place: there are two competing versions of an event and it’s the jury’s job, as the judge of the facts, to determine which one is more believable.

• Facts are the tools of the trade.

Vivid Chapters Help Jury To Accept A Prior Statement As More Accurate

• Introducing an alternative explanation is at the heart of impeachment by inconsistent statement.

• On cross, the lawyer wants the witness to establish a prior version of an event with great clarity, in order to cast doubt on the version testified to on direct.

Vivid Chapters Help Jury To Accept A Prior Statement As More Accurate

• As Pozner and Dodd eloquently state in their book, impeachment by inconsistent statement is “similar to a double exposure of the film.” “The picture may itself have been well defined, but after the cross-examination there is a double exposure that makes the [jury’s] vision less certain.”

Step 3: Accumulating Facts In Support of the Goal

• Suppose that your adversary has called an expert in the field of psychiatry to offer an opinion within a reasonable degree of medical certainty on a psychiatric diagnosis. To strengthen the credibility of this expert, your adversary has elicited the fact that he published ten articles in some of the most respected psychiatric journals.

• The relevance of this information is that it assists your adversary in establishing the credibility of his expert so that the jury will accept him as an expert in the field of psychiatry.


• Remember that cross-examination is methodical. A good cross-examination reveals itself one goal at a time.

• In this example, one of your overarching goals is to discredit the witness in order to undermine the juror’s confidence in his opinion.


• Before blindly accepting the fact that the psychiatrist is sufficiently qualified to testify and foregoing constructing a chapter relating to his qualifications, take a deep breath and ask yourself the question: “Do any of these publications relate to the topic of psychiatric diagnosis, the ultimate opinion that he has been called to testify on?”


• If not, then you can begin drafting a chapter based upon the fact that none of the ten publications relates to psychiatric diagnosis.

• This is a single chapter that groups together the available facts that diminishes the importance of the witness’s ten publications.

• The credibility of a witness is enhanced or diminished by factual chapters, and this chapter demonstrates that.


• Chapter: Publications

– Q: You placed everything you published in your resume?

– Q: You are particularly proud of your articles?

– Q: Publishing an article demonstrates where your interests lie?Q: Doing research in an area helps you to develop expertise in an area?

– Q: From 1998 to 2006, you published ten articles?


– Q: Every one of your articles was about hospital administration?

– Q: Your articles are all about this single administrative issue?

– Q: None of your articles addressed psychiatric diagnosis?

End of chapter.


• There is no conclusion: “So, you are not really an expert in psychiatry?”

• The chapter scored all of the points that it was capable of.

• The cross-examiner has marshaled together strong facts to discredit the expert on the single point that his publications somehow distinguish him as a person whose opinion on a psychiatric diagnosis is to be trusted.


• While the expert might still be credible, the fact that he has published ten articles no longer carries the weight that it once did. In fact, the fact that the witness has been published at all is unlikely to have any bearing on the jury’s determination of his credibility on the ultimate issue of psychiatric diagnosis.

• Moreover, your adversary is less likely to use this fact to bolster the expert’s credibility.


• No one chapter will strike the fatal blow or be the coup d’etat.

• The accumulation of chapters, while not so thrilling, is most reliable because it accomplishes the goal of discrediting the expert and undermining the juror’s confidence in his opinion.

Conclusions can be disputed. Facts cannot.

• Conclusions are like the Mean One, Mr. Grinch: witnesses dispute them.

• The chapter method prevents us from falling into this perilous trap.

• Using the chapter method, the attorney can present potent facts that are so compelling that the jury can’t help but to agree with the attorney’s desired conclusion, even though the witness was never explicitly asked to agree with that conclusion.


• Consider the following example from the creative genius of Pozner and Dodd in their book, “Cross-Examination: Science & Techniques.”

• The cross-examiner wants to establish that the opposing witness was under great financial pressure.

• The witness will never concede this conclusion. In fact, you can count on him vigorously disputing it.


• Cross-examining in the chapter method shows that you do not need to beat the witness over the head with a baseball bat on that conclusory question.

• Instead, the idea is to reveal various aspects of the witness’s financial situation one fact at a time.

• What follows are some chapters you might employ in order to weave this tapestry:


• Chapter 1: In 2013, you borrowed $ 10 million from Wells Fargo Bank

• Chapter 2: The payments on the $ 10 million loan were as follows

• Chapter 3: The money was borrowed to finance your acquisition of ABC Company

• Chapter 4: The plan was to use money generated from your widgets contract to make the loan payment


• Chapter 5: The value of the widgets contract

• Chapter 6: The payments expected from the widgets contract

• Chapter 7: But in 2015, the widgets contract was canceled

• Chapter 8: In April 2015, you missed your quarterly payment to the bank


• As these chapters show, a disputed fact can best be made by building chapters of facts that lead to an inescapable conclusion

• The hostile witness is left with the unenviable task of answering “yes” but chomping at the bit to explain why

• This is why it is vital to stick to proving the facts and resist the temptation of asking the witness to agree with your desired conclusion – i.e., that he was under intense financial pressure.


• You must do a complete 180 on how you look at things. You have to give more credit to the jury and trust that they will arrive at the desired conclusion if you stick to the systematic grouping of facts and allow them to make the discovery on their own.

• No question, the witness will “deny, deny, deny” on re-direct. But blanket denials are self-serving and pale in comparison to vivid and detailed facts. They can’t paint nearly as powerful a picture as what a chapter can.


• Query: What if you know that a hostile witness will affirm a conclusory question? Must you still create the factual context necessary to make the point?

• Even if a hostile witness can be counted on to affirm a conclusory question, the monosyllabic answer, standing alone, is insufficient.


• In keeping with the theme that you are “teaching the jury” during cross, you should still provide the jury with individual facts that help them to accept your goal. The chapter on a single topic allows you to highlight the point you are making with unparalleled clarity.

• Don’t be lazy. Don’t take short cuts.

One Question is Never Enough

• A group of facts create context. A single leading question doesn’t.

• Receiving a favorable answer to a goal fact question is never enough!

• The goal must be supported with the strongest facts that are available.

• The facts that support the goal provide the strongest justification for the jurors to accept the inference suggested by the chapter.

One Question is Never Enough

• As the attorney, it is your job to provide enough detail and supporting facts that decisions seem obvious or at least fully substantiated by the facts.

Establishing the goal fact through supporting facts

• The simple goal of establishing that a witness saw a white Honda requires more than simply asking, “You saw the white Honda?”


• Example

– Q: You were standing on the street corner?

– Q: It was daylight?

– Q: You saw a Honda?

– Q: It caught your attention?

– Q: It was white?


• This group of questions requires the witness to admit all four facts in order to firmly establish the goal fact that the witness saw a white Honda.

• These supporting facts, while seemingly innocuous, more accurately and credibly establish the fact that the witness saw the Honda and that it was white.

Drafting Chapters: Putting Facts Into Context

• We’ve talked a lot about the “goal.”

• What do I mean by goal? To me, the goal is to create within the jury a “feeling” about a fact.

• A fact is made up of numerous supporting facts.


• For example, in a chapter called, “Promises Made by the Government,” the literal fact is that the snitch got a deal in exchange for immunized testimony.

• Odds are that the snitch will concede that and may well have done so on direct.

• The more important goal, however, is to get the jury to view the snitch as a fish rotting from its head down so that they will not believe his testimony.


• What is the goal of the chapter? It’s two-fold

– First, to put the deal into context

– Second, to flesh out for the jury why the heck it matters


• Example: John is arrested for theft, but no money is found on him. This is a fact. It could be the most critical fact of the case or it could be completely innocuous, depending on the context.


• Here’s what I mean:

– Was John approached moments after the bank robbery because he fit the description given by the teller?

– Was John arrested four weeks later after a photo identification?

• Only by knowing the context of the fact can you – and ultimately the jury – appreciate its significance to the case


• In order for a goal fact to have meaning to the jury, you must examine it upside down, sideways, and backwards in various contexts.

• The chapter method is the most straightforward way of finding the appropriate context for a factual goal.


• In the chapter, “Promises Made by the Government,” the goal-fact may be the deal

• But what about the context?

• Perhaps the defense attorney wants to exploit the deal as being so generous that it defies belief. In this case, the theme might be, “too good to be true!”


• Example: John was caught red-handed – in one hand his gun, his trusty friend. In the other hand, a bag of money – someone else’s money. John was facing a prison sentence that would have kept him behind bars for the rest of his natural life – a life spent away from his family and confined to a cold, dank cell with a porcelain toilet and a mattress so thin that the springs left permanent bruises up and down his spine.


• John no longer needs to fear a life condemned to living behind bars because prosecutors promised “to take care of it for him.”

• These ancillary facts provide a context in which the goal-fact can be appreciated.


• Some chapters have a second purpose: “Establishing a feeling or an emotional reaction to the facts.”

• Generating a particular emotion, such as sadness, outrage, empathy, disgust can be very powerful. Here, specificity is vital.


• For example, the chapter, “Promises made by the government” is as much designed to leave a bad taste in the mouths of the jury with respect to the deal negotiated between the prosecutors and the drug dealing witness as it is to deliver factual information of the chapter


• There are times when the emotional goal outweighs the factual goal

• For example, when you can elicit from the snitch how he lied, cheated, and deceived people, proving how he accomplished his crime is subordinate to convincing the jury that he is a twisted and perverted creep capable of manipulating facts and manufacturing lies, not unlike Heath Ledger’s character, The Joker, in “The Dark Knight.”


• The emotional reaction rarely subsides, but will continue to last long after the witness is done testifying. The jury’s memory of him will not soon fade!

Building a Chapter: Step 4: When is a subject sufficiently broken down?

• In “Cross-Examination: Science and Techniques,” Pozner and Dodd answer this question in the form of a “mathematical equation.”

• They reduce it to a four-step formula:


• Step 1: “Every topic has a value.”

• Step 2: “That value can range from virtually zero to supremely important.”

• Step 3: “To recognize the value of a particular topic, consider how much that topic helps [your] theory of the case or how much that topic undermines [your adversary’s] theory of the case.”


• Step 4: “A topic having the greatest impact on the opposing theories of the case deserves the greatest time and attention.”


• Acknowledging that this is a theoretical approach, Pozner and Dodd are quick to cite an example

• Recall the earlier example where the cross-examiner had to establish that the witness was in dire financial straits in a specific year


• If that financial apocalypse significantly undermines a competing theory of the case, then all of the information that is available to paint such a morbid picture is deserving of more than one chapter.

• This is where you say, “time out” and break this chapter down into fine granules of sand and meticulously examine each one like a scientist examining a particle under an electron microscope.


• This hyper-attention to details might lead to the following additional chapters:

– A bank loan requiring periodic payments

– A missed payment in that time frame

– The forced sale of the witness’s assets at a sheriff’s sale

– NOTE: If a bank loan entered into years before has no bearing on the financial plight of the witness, then forego mentioning it


• If additional events exist to help prove the financial plight of the witness, then additional chapters should be developed that use these facts

Important Topics Should be Broken Down in Great Detail

• The most important topics should be broken down in the greatest detail

• Tip: It is easy to combine two potential chapters into one larger chapter in the eleventh hour than it is to attempt to break down one chapter into two smaller chapters in the eleventh hour


• The example concerning the photographic array demonstrates that even general chapters that appear to be damaging to your theory of the case might be neutralized or, even better, turned into “good facts” that support the theory of your case. This can only happen when details are closely analyzed


• When in doubt, analyze the material more closely. Events are only understood in context. Give yourself permission to daydream and let your imagination run wild. You will be surprised what lies in the deepest recesses of your mind. This is the genesis of all creativity. But you must be relaxed and calm in order for your fertile imagination and free association to take over.

Is it possible to break the evidence down too far?

• Yes. This is a pitfall that must be avoided since time spent preparing for irrelevant issues is time wasted. As busy lawyers, we can’t afford to get sucked into the cosmic vacuum of a black hole and be left to languish there.

• What deserves the greatest attention is the evidence that has the greatest impact on the theory of the case or on the credibility of a witness.


• Topics or chapters that accomplish none of these things are not worthy of your time and effort and should be disregarded entirely.


• Example:

– If the date has nothing to do with the contrasting theories of the case, don’t waste time drafting a chapter concerning the date.

– If the educational background of the witness has no bearing on the case or on the credibility of the witness, don’t waste time drafting a chapter on it.


• One of the advantages of the chapter method of cross is that important facts deserving of attention pop right out like a flashing neon sign.

Cross-Examination as a Performance


Your Voice

• Use your voice!

– Breathe and relax

– Vary volume, pitch, tone, pace, inflection, cadence, silence, and emphasis (especially during impeachment)

– Tone conveys emotion

– Use these devices to signal the completion of a chapter and/or the beginning of a new one

Use Your Body & The Space to Persuade

• Be aware of your facial expressions;

• Your arms and your hands are attached to your body – use them with purpose!

• Focus your attention on the witness;

• Use the space. Move with purpose.

Closing Remarks

• Your voice and body should radiate a sense of confidence and belief in your client and your case

• Knock it out of the park!

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Contact Information

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