Here is another fun story Irving Younger employed in his cross-examination lecture. He used it as a “one question too many” example, but I think it works far better for fertile ideas when a large number is involved. Let me explain:

Younger said imagine you must cross-examine a room clerk at the Waldorf-Astoria hotel. On direct examination, the room clerk positively identified your client as a guest he registered several years before.

Here is the cross:

Q. You had been a room clerk at the hotel for ten years before this day.
Q. In those ten previous years you registered five hundred twelve thousand, nine hundred and seventeen people.
Q. In the years since the day in question, you registered another four hundred twelve thousand, eight hundred and thirteen people.

With these questions you have established that the witness registered a million people. To remember a guest he saw once for a few moments seems impossible due to these numbers. Younger advises as he does with the Mobil private plane example to stop and sit down. Save for the final argument that he can’t possibly remember one out of a million.

But Younger asks “Will you stop? No. Will you sit down? No. Instead, you will ask the next question: “Then, how come, Mr. Teller, you can remember this one person out of a million?”

And when you ask that fatal question, you will get the answer similar to this: “Well, he walked up to me, and he put a gun to my head, and he said to me, ‘If you don’t register me, I’ll kill you.’ So I remembered.”

This last question does, as Younger says, “blow up in your face.” But let’s examine why the cross doesn’t work. The problem has nothing to do with violating any of the so-called ten commandments, especially in asking one question too many. The real problem is in examining on an unimportant detail rather than focusing on a real weakness in the witnesses testimony.

The witness will always trump your cross on this issue because he has an excellent reason to remember your client and one the jury will readily accept. And in doing this all you do is lose credibility with the jury. They see you grasping at straws. So don’t go down that road at all. The lesson to be learned is only cross-examine on a real weakness that can’t be solved easily on re-direct. Know where to attack. Only then apply the techniques of cross examination. Don’t confuse tactics with strategy.

There is a benefit to examples like this beyond Younger’s point. I find they get you thinking of ways to use the large numbers involved. Soon after I listened to Younger I had to cross examine a veteran fingerprint comparison expert. In order to pump up his qualifications he testified on direct to comparing some multiple of millions of latent prints to standards. This was an obvious exaggeration so I decided to run with his numbers.

I asked him how many years he did this, the number of weeks worked each year and then figured out the hours etc. I did the math and this guy admitted he had to do an examination every minute not counting coffee breaks. It was fun, safe to do, and somewhat deflated his ego.

I didn’t ask the one question too many, but saved it for the final argument that the expert either worked too quickly and subjected himself to error or he exaggerated his qualifications and either way was not reliable.