Take the Witness: The Experts Speak on Cross-Examination
Edited by Lawrence W. Newman and Rikki Klieman
(Juris Publishing, 2006 — 593 pages, $95.00)
Reviewed by Ina R. Bort
From the New York Law Journal
July 5, 2006
Presumably, the primary purpose of this new book is to assist litigators in preparing and executing effective cross-examinations at trial. Equally likely is that the target audience for the book are practitioners who are preparing for an upcoming civil or criminal trial, and wish to see what the designated "experts" have to say about what is generally acknowledged as one of the more difficult aspects of the litigation process. This book only partially succeeds at fulfilling these goals.
Perhaps the best aspect of Take the Witness is the way in which the editors have organized the chapters. These are clearly labeled and deal with discrete categories of cross-examination: cross-examining the expert witness, or the eyewitness, for instance. The editors have also done well in canvassing the bar for interesting contributors who, for the most part, convey their ideas in clear and concise language. Many of the all-star contributors are as well known as their clients: F. Lee Bailey, Benjamin Brafman, Elkan Abromowitz, Gerald Shargel. Not surprisingly, these high-powered members of the trial bar had much interesting material to draw from in preparing their contributions to this volume.
But while these authors' stories of successful cross-examinations are often entertaining, they are not always the source of particularly useful advice for the average trial attorney. More times than not, it is not clear why a contributor includes a description of a particular cross-examination (and more than a few simply re-print long excerpts of the cross-examination transcript with little to no analysis) other than to remind us of the Extremely Important cases in which he (and 27 of 29 of the contributors are men) has been involved over his long and illustrious career. In this respect, reading Take the Witness can feel like attending a Continuing Legal Education lecture — without getting the credits.
Happily there are exceptions. In one especially interesting chapter, James M. Doyle explores the challenges involved in cross-examining an eyewitness to a crime or accident, and provides sound advice — much of it based on psychologists' findings regarding the processes of perception and retention — on how to surmount, or at least mitigate, these challenges. He explains that jurors are inherently trusting of and sympathetic towards eyewitnesses and that, accordingly, it is unwise to blatantly question the reliability of an eyewitness's memory. Rather, the better approach is to point out subtly through questioning how the conditions under which the incident was seen by the witness were not ideal (a dark and rainy night, for instance), and, similarly, why inherent problems in the fact-finding system — not in the eyewitness's intellect or trustworthiness — might very well lead to mistaken identification of a suspect. For example, it is helpful in a criminal trial to review with the eyewitness (or police officer) on cross-exam any line-up process employed by the police and, if possible, to highlight how a police officer's presence or commentary (or lack thereof) may have influenced the witness's identification of a suspect. If the police never told the witness that "none of the above" was an acceptable answer after viewing a line-up, bring that out. If the individuals were shown to the witness as a group rather than one by one, bring that out in such a way to "make the point," Doyle explains, "that the choice was based on a comparison rather than recognition."
While David Dorsen's chapter, "Cross-Examining the Well-Prepared Witness," is somewhat plagued by the here-are-all-the-famous-cases-I've-worked-on problem (Dorsen represented General Westmoreland in his libel case against CBS and was Assistant Chief Counsel of the Senate Watergate Committee), he includes one very helpful anecdote that could be used by any attorney representing a business fraud defendant whose defense is that plaintiff's claim is time-barred. Dorsen recommends that you make the plaintiff believe that you are trying to portray him or her as inattentive to his/her business affairs. In response to questions suggesting as much, the plaintiff will undoubtedly disagree and, by insisting that he/she "had been attentive to his affairs, . . . . was [therefore] aware that the defendant was attempting a fraud."
Gerald Shargel's chapter, "The Psychology of Cross-Examination," offers a refreshing perspective. He cautions against efforts to execute the "killer cross-examination" and writes: "The truth is that very few witnesses are 'killed' on cross-examination. In my view, cross-examination is more often a subtle, if not elegant, psychological exchange where the questioner is the master of both the subject matter and the witness. I would think ballet rather than war."
Shargel explains the importance of studying a witness's performance on direct examination, and the appropriate tailoring of the cross-examination based on that performance. If a witness, for instance, appears uncomfortable about a particular subject on direct, seize upon that subject during cross. If he or she, during direct exam, appears deeply sorry for a particular lapse in judgment, do not browbeat the witness on cross but instead end questions with words such as the following, uttered "in an empathetic tone: 'You should have reported that fact to your supervisor, but you didn't?'"
As do other contributors, Shargel emphasizes the importance of connecting with the jury, and he offers specific recommendations on how to do so. Ask clear questions that jurors can follow. Do not bore them. Use appropriate humor and self-deprecation. Master the facts of the case so that jurors trust you.
Even the most seasoned of the contributors to Take the Witness acknowledges that cross-examination is hard work. Nothing can replace the hours and hours of investigation and preparation that it requires. To some degree, this book offers several helpful insights to ensure that preparation pays off.
