Presenting a live 90-minute webinar with interactive Q&A Cross-Examining Hostile Witnesses and Using Technology and Psychology as Additional Tools WEDNESDAY, NOVEMBER 14, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Sandra F . Clark, Shareholder, Mehaffy Weber , Beaumont, Texas William E. Hammel, Partner, Constangy Brooks & Smith , Dallas The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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CROSS EXAMINING HOSTILE WITNESSES Sandra F. Clark MehaffyWeber, P.C. Beaumont/Houston/Austin, Texas 409.835.5011 ext. 432 SandraClark@mehaffyweber.com 5
Purpose of Cross Examination “Cross examination is the ‘great engine’ for getting at the truth.” Ralph Fine 6
Why is a witness hostile? • Stake in outcome – Party – Identifies with party – Reputation as witness – Takes a side • Expert – In the testifying business – Competitive: Wants to win • Personality – Dislikes your client – Aggressive personality – Dislikes litigation and lawyers 7 7
Diffuse the Hostility • Personality – Disarm with your own personality – Know their background and find something common • Experience – Means they’ve done this a lot – Means they have lots of opinions out there – Sometimes that can help you 8
Scope of Cross Examination • Rule 611(b) FRE – Cross examination is limited to scope of direct examination and matters of witness credibility • Most states have broader cross than that; however, 10 states have adopted the federal model 9
Is Cross Examination Necessary? • Did that witness hurt my case? • Would asking questions improve or simply reinforce bad testimony? • How important is the witness? • Does the jury expect cross? • Can the witness be controlled or impeached? 10
Develop a Plan For the Hostile Witness • Establish a goal for any witness • Decide the facts or opinions you must establish with each • Cross examination can be the most interesting part of trial 11
Techniques for Cross Ask leading questions? Usually • Each question should advance your case • Nail the witness with cross • Every question must fit the plan • Unless the answer is known or does not matter . . . DO NOT ASK THE QUESTION! 12
More Techniques • Prepare, prepare, prepare • Outline the topics to cover • Be organized • Master all prior depositions, articles, and other documents for the witness • Investigate witnesses - the Internet can be a wealth of information 13
Results of Internet Search Q: You are on staff at M. D. Anderson Hospital? A: Yes. Isn’t it true that M. D. Anderson Cancer Hospital has a website? Q: A: Yes. Q: Have you ever had any articles published on the M. D. Anderson website? A: A few. Q: Do you remember one of your articles that appeared there just three months ago? A: I think so. Q: In that article, you talked about T-cell lymphoma, the very type of cancer involved in this case? A: I believe so. Q: And you wanted to be as accurate as possible? A: Of course. Q: Turn to page four of the article that was published there. A: Okay. Q: In this article, which you published on the web site just three months ago, you about what is known regarding the cause of T- cell lymphoma, isn’t that right? talk A: Yes. Isn’t it true that you said the following: “No one knows what causes T -cell Q: lymphoma.” Is that what you wrote just three months ago? That’s what it says. A: 14
Be Flexible • Outlines are necessary - to a point • Refrain from looking at the outline too often . . . Jury will think you are insecure • Non-leading questions have their place . . . Allow the witness enough rope • Even “Bad Answers” can work at times . . . Shows witness Not credible 15
Example of Inflexibility Example of No Flexibility • Recognize that the best question may arise from the answer, not the outline. For example: Q: Are you a married man? A: No, my wife died. Q: That is too bad. What was her cause of death? A: She suffocated. Q: What is your current address? (From the outline.) 16
Strategy • Vary the routine of leading questions • Know the difference between tough and mean • Know when to quit 17
More Strategy • Cross allows you to call fewer witnesses • Avoids repetition of facts or details • Moves the case along in Juror’s view • Prevents opposing counsel from scoring points through the witnesses you do not call in your case 18
Destructive Cross • Discredits the testifying witness or another witness • Reduces persuasive value of the opposition’s evidence. • Establishes control of the witness both in his mind and in the mind of the jury 19
Always remember… Your audience is the jury, not the expert 20 20
Don’t make the jury mad • Do not demand a “yes” or “no” answer • Do not quibble over minor details • Do not appear as a “cross” examiner • Do not treat every witness as a liar • Do not argue with a witness • Do not interrupt an evasive witness • Do not object unless you have to 21
Supportive Cross Even from Hostile Witness • Bolsters your case • Helps your story • Develops favorable aspects of the case • Supports your witnesses • Discredits other witnesses 22
Experts • Rule 702 FRE (1) Will specialized knowledge assist trier of fact? (2) Are the opinions and methods reliable? 23
Experts • Judge is gatekeeper Is expert’s reasoning and methodology scientific valid? (1) (2) Have conclusions been tested? i.e. subject to peer review? (3) Is Methodology widely accepted? Daubert v. Merrill Dow Pharmaceuticals 509 U. S. 579 (1993) • Daubert application is flexible • Should be applied to other technical experts Kumho Tire v. Carmichael , 526 U.S. 137 (1999) 24
Handling the Hostile Expert • Be Polite and Professional – Know your jurisdiction and expected behaviors • Be Brief • Be Strong • Your demeanor counts! 25
Controlling the Expert • It is crucial to maintain control over an expert • Do not allow the witness simply to restate or explain • Prepare a list of points that the witness must concede • Keep questions short to obtain a short answer • Do not skip around too much • Undermine the value of an expert’s credentials • Show him to be biased 26
Example of No Flexibility 27
Example of Bias Example of No Flexibility Q: Dr. , you came here from a trial in Florida, tomorrow you go to California? A: Yes Q: In all these trials, in all these states, you use the same slides, the same facts, the same opinions? A: Yes Q. And you gave the same testimony today without reviewing a single document, deposition or shred of evidence about Mrs. Jones’ case that you will give tomorrow in another plaintiff’s case? A: I suppose so Q: Charging $500 per hour each and every time? A: Yes STOP! 28
Impeachment • Demonstrate bias, prejudice or clear partisanship • Point to prior inconsistent statements • Demonstrate that the testimony of the expert is contrary to recognized authorities; • Demonstrate that the testimony is unreasonable or improper; and/or • Attack the credentials or qualifications. 29
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Undermine the Credentials: Example of No Flexibility Undermine the Credibility • Yet, you say you’re a board certified toxicologist. The organization that you claim gave you that certification is the American Board of Forensic Examiners, correct? • That organization is not a medical board? • Did you know that the group certifies everything from dentists to accountants to nurses to policemen to social workers to homeland security? 31
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