On Friday, December 12, 2014, I will be teaching a seminar on cross-examination at the FIU Law School. The seminar has been organized by H.T. Smith and Scott Fingerhut. Below are the materials I drafted for the seminar.
FIU Cross-Examination Seminar
I congratulate you for joining this seminar. A program like this brings out the professionals. It is the true professionals who are always looking for the extra edge to make them better. They are always looking for just one more good idea to get even better. The people who need it the most just don’t show up. Or they come and sit down for five minutes and then get up and leave. You have made the commitment to master this skill. This is the essential first step.
“There’s no training for the staff here. The training is just PowerPoint.”
DR. MOHAMMED BAH, the director of a government hospital in the Bombali district of Sierra Leone, on the lightly trained and minimally protected nurses who care for Ebola patients.
This quote speaks volumes. It reminds me of how we ineffectively teach trial skills in the law schools. I have spent many years teaching and thinking about how to teach trial skills like cross-examination. This seminar will not be a lecture with a PowerPoint because lectures don’t work.
Cross-examination is a fundamental tool in the trial lawyer’s toolbox, yet there is a large gap between knowing what to do and actually doing it. Knowing what to do is not enough. Our challenge is turning knowledge into actions consistent with that knowledge.
The knowledge comes from the many engaging books and instructional videos about cross examination. The primary one is the famous Ten Commandments lecture by Irving Younger. I saw it live and it was a lot of fun. Albert Krieger’s seminar titled Advanced Cross-Examination was brilliant. I recommend Pozner & Dodd’s Cross-Examination: Science and Techniques and F. Lee Bailey’s just released Excellence in Cross-Examination.
These materials are fun to read and watch, but you will not learn to cross-examine from any of them. Trust me, I know. The only method that works – as Nike captures it – just do it. Do it with instruction. It is time consuming and expensive, but it works. The more you do here, the more you get it. You don’t have to be perfect. No one is. You don’t even have to be good. But you must actually do it, and there is no doing without mistakes. This is the only way. There are no shortcuts. Imagine learning a language without speaking it, or riding a bike without getting on it.
My method is to teach during the exercise, not before or after. This works for me and for you. I need concrete examples to work with. You will supply them. We will work through them together. This is one-on-one coaching. This is not the traditional law school case method or Socratic dialogue designed to ridicule anyone. It is more coaching, and it only works for you if you are prepared for the class.
So that is what we will be doing. You will cross examine this hypothetical but typical witness while I evaluate your technique and coach you on how I think it should be done. When we do exercises like this, concrete samples will naturally arise and I will use them for teaching. Concrete examples always trump abstract ideas. This is the only method that works; there are no shortcuts.
When my old colleague H.T. Smith asked me to join this seminar, he suggested I do a 90-minute presentation to explain cross examination. Instead, I suggested that I take the entire afternoon so I could work with each one of you personally. Everyone in the course will get a chance to cross-examine using the problem. No matter how long it takes, everyone will get the chance to participate. Everyone.
Here is what we are going to do today. We are going to work at this. Just you and me. No fancy PowerPoint slides. No audio. No video. No demonstrations. And especially no lectures. Just working the problem and asking questions.
My promise to you is that every time we practice this, you will improve 100%. In order for this to work you have to work with me. No slacking off. Do your best. The more you are into, it the more I will work with you. I will start with volunteers.
The woman in our problem is the star witness in a trial. If she leaves the stand untouched, you lose. Who is the star witness? The plaintiff in a personal injury case, the CEO in an acquisition battle, the husband or wife in a divorce action, a former employee is a sex harassment suit, or a co-conspirator who has made a deal to testify. I use the latter because the no-holds barred of the government’s chief witness is indispensable. If she says your client masterminded the scheme, there is little place for subtlety or nuance on cross; either you slay the dragon or it slays you.
I write a blog and have quite a few posts on cross examination. I suggest you read these prior to the seminar:
FIU Seminar 2014
Each student will cross-examine Mary Smith, who is the government’s chief witness in the case titled United States v. Abdul Ibrahim Rahman. You represent Rahman, who is accused of trafficking in crack cocaine. Smith claims that she was a street dealer selling crack cocaine for Rahman’s cocaine organization. On Sept. 11, 2014 she was arrested by officer Sam Robinson of the Miami Police Department for selling crack on the corner of NW 2nd Avenue and 11th Street in the Overtown area of Miami. She sold 3 vials of crack to Robinson, who was working undercover.
At her first appearance hearing before the federal magistrate she claimed she was indigent and was appointed the federal public defender. He informed her that the penalty for trafficking crack cocaine is a mandatory minimum sentence of 10 years and that her sentencing guideline calls for 20 years in prison.
Smith was kept in solitary confinement in the downtown women’s jail for several weeks because she was considered an escape risk. Finally, she agreed to testify against Rahman. While in jail, she signed a plea agreement promising to testify against Rahman in exchange for a promise by the federal prosecutor to recommend a three-year suspended sentence. After she signed the agreement, the prosecutor immediately went to court and convinced the judge to release her from jail on her own recognizance without posting any monetary bail. Smith will not be sentenced until after she testifies in court against Rahman.
Your investigator discovered that Smith was romantically involved with Rahman but they broke-up when she found him in bed with one of her girlfriends. She had been living with Rahman at the time in a Brickell Ave. condo. She immediately moved out. Smith has a five-year-old daughter named Samantha. She is estranged from her family and no one will take custody of her.
On direct examination the prosecution introduced her written plea agreement into evidence. The agreement stated that she faced a 20-year prison sentence, but if she fully cooperated and abided by the terms of the agreement the government would recommend to the court that her sentence be reduced to 3 years’ probation. She testified that her plea agreement required her to tell the truth in order to obtain her sentence reduction. If she failed to cooperate or did not tell the truth the agreement would be revoked and she again would face a 20-year sentence. A specific paragraph in her plea agreement required her to testify against Rahman in order to qualify for substantial assistance credit.
Strategy: This is the star witness for the prosecution who is only testifying because of her plea bargain. Obviously she seeks a reward for her testimony. This should make her testimony less reliable than the ordinary witness to a crime. You must expose the weaknesses of her credibility to the jury. How do you do this? Get into her head. Role play. Think like her and brainstorm why she is testifying. What is her motivation? What does she have to gain? Your job is to expose all her fears and hopes to the jury. There is no need to be hostile, but rather firm and be sure to get responses to your questions.
Cross-examination is one of the most difficult trial skills to master. This exercise is designed to test your tactical ability to punch holes in the believability of a witness. Be prepared to explain the purpose behind each line of questions you ask, how it fits into your theory of the case and thereby advances your goal.