November 20th, 2021

Great Cross Examination-Gregory Peck

Dealing with a lying witness will happen to every lawyer who tries cases. Francis Wellman in The Art of Cross Examination (1903) discusses the perjured witness.

In Chapter IV,  Wellman points out a false testimony witness may display “in the voice, in a vacant expression of the eyes, [and] in a nervous twisting in the witness chair….” We see these traits in Mayella Violet Ewell in the the movie clip from To Kill A Mockingbird where Gregory Peck presents classic cross examination.

Wellman covers techniques to use on the unsophisticated lying witness. “Try taking the witness to the middle of the story then jump… to the beginning then to the end.” This works because the witness has “no facts with which to associate the wording of her story.” She can “only call to mind as a whole rather than detachments.”

Wellman teaches “[d]raw attention to facts dissociated from the main story as told. [S]he will be entirely unprepared.” (This is seen in the clip when Peck demonstrates Tom’s lame left arm). Then, like Gregpry Peck in our film clip, return to the facts you have called to her attention (Tom’s lame left arm) and ask her the same question again (how did the rape take place given prior testimony).

As we learn from  Wellman  she cannot invent answers as fast as the questions.”[S]he will…become confused and from that time be at your mercy.” Then Wellman says let her go as soon as you have made it clear her testimony is not mistaken but lying.

As we see in the clip, and as predicted by Wellman, Mayella Ewell, is at the mercy of Atticus Finch. She cracks as Atticus and everyone else watches. This is the ultimate cross examination of a perjured witness.

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October 18th, 2021

Direct & Cross Examination-“Six Honest Serving-Men”

Years ago I attended a Day With Paul Luvera where the great trial lawyer quoted Rudyard Kipling’s “Six Honest Serving Men” when discussing cross examination. From Paul Luvera these six question areas have served me well.

When I prepare for direct and cross I first write out my questions. This seeds my memory as I write my lines and read them back committing them to memory. At trial during direct I rarely refer to my lines. I simply have a conversation with the witness. For cross I do refer to my lines because my lines are the lines of the opposition witness. I note where in the deposition or in a document the witness line to my question is so I can impeach if he fails to agree.

In all cases I find myself referring to the “six honest serving-men.” These six friends are always with me as they often assist in deeper penetration in direct and cross. Below are some examples on how they can help:

Who. For direct I begin with who are you questions. The jury wants to know where plaintiff grew up-“Where did you go to high school and what year did you graduate?” The jury needs to learn about plaintiff”s  job and activities before her injuries so they can appreciate how plaintiff has been impacted by her injuries. On cross who are you questions are effective when the witness has misled the jury on her background. Who are you questions allow penetration into background which can lead to destruction of the witness.

What. After finding out who the witness is, I am ready for what questions. On direct of plaintiff, what happened often follows who are you. What happened elicits the story on the mechanism of the injury. Also what questions elicit the facts of the injury. On cross what questions go to the foundation for the witness’s testimony : ” What documents have you relied upon.”

When. The remember when questions are:  “When did you first have symptoms?” “When did you treat for your injuries?” “When were you last able to [engage in particular activity].” “When did you [do particular activity]?” On cross when questions pin down timing of events.

How. The how questions go to how plaintiff is overcoming injuries. If future medical is needed then this is a how question answer. If activities must be altered then this is a how question answer. For an expert how questions uncover how the expert arrived at his conclusion. For a lay witness how questions on cross go to how the witness is able to make his statement based on the facts.

Where. Where questions are important for painting a picture through testimony of where the event occurred. This holds true on both direct and cross. Key facts in every case occur at particular places. Our friend where ensures we make the place clear in the jury’s mind.

Why. The classic rule on cross examination is never ask a question unless I know the answer. This holds true on direct as well. Although why is one of my six friends, he is rarely used. When he is used, however, he can be deadly. I never use him though if he can be deadly to me.

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September 9th, 2020

Cross Exam of Defense Forensic Economist

This cross examination discussion is from my cross examination notes in a survival action economic loss case.

Forensic Economist. Agree you develop estimates for numerous variables that affect the recovery in tort cases. Agree in a survival action these variables are: 1) Base Earnings; 2) Earnings Growth Rate; 3) Fringe Benefits; 4)  Personal Consumption; and 5) Discount Rate.

Base Earnings Rate. Defense forensic economists will start as low as possible. When they begin too low cover how the low base rate was arrived at and why a low base rate will lead to a lower economic loss amount. Demonstrate the rate of pay at which the economist should have started.

Earnings Growth Rate. Another way the defense economist can understate economic damages is through the “earnings growth rate.” Earnings do not grow in a linear manner until retirement. Typically they peak about ten years before retirement. Here time must be spent with our economist to determine and understand a fair economic growth rate. When the defense economist fails to do this and understates the growth rate demonstrate in cross examination this leads to an understatement of economic damages.

Fringe Benefits. The defense economist will start with a low base income rate and fail to add fringe benefits. “Data from the last few decades reveals that fringe benefits have increased significantly as a percentage of overall compensation. These benefits now account for almost 30%… of total compensation. ,,, Damage calculations must therefore include a valuation of fringe benefits.” David Gordon, A Forensic Economics Primer (Journal of Comprehensive Research).

Consumption. The defense economist may try to overstate personal consumption. This is because the amount of personal consumption is deducted from lifetime earnings before the discount rate is used to arrive at net economic loss. Future earnings of the deceased are adjusted for his consumption. See id. at 44-45. Consumption covers expenditures on goods and services, but does not include joint family expenditures. When possible the economist will look to actual expenses, but this does not work in the case of a young decedent. Have an understanding of how your economist is addressing personal consumption, and make sure it is solid. Hold the defendant economist to a similar analysis to prevent getting away with overstating consumption which results in understating net economic loss.

Discount Rate. The United States Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) addressed the issue of the proper discount rate in a personal injury case involving future economic loss. The Court reasoned in all personal injury cases involving future economic loss “it is reasonable to suppose that interest may safely be earned upon the amount that is awarded. Id. at 537. Thus, the ascertained future benefits should be discounted. The Court pointed out the discount rate should be one earned on the best and safest investments. Id. The injured plaintiff is “entitled to a risk-free stream of future income to replace his lost wages; therefore, the discount rate should not reflect the market’s premium for investors who are willing to accept some risk of default.” Id. The Court concluded the amount of future economic loss must encompass the amount the injured plaintiff would have earned during each year he could have worked but for his injury and the appropriate discount rate “reflecting the safest available investment.” Id. at 538. Have  the Jones case when cross examining the defense economic expert. This is because the defense expert will likely use a high discount rate arrived at at least partially from stock market return rates. Remember, the higher the discount rate the lower the net economic loss amount. The use of the high discount rate deflates economic loss contrary to our Supreme Court.

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February 29th, 2020

Great Cross Examination-Charles Laughton

 Cross examination is a challenging part of the trial.  It presents the opportunity to either turn an adverse witness into my witness or destroy the adverse witness. Either way my case benefits form successful cross examination.

My preference is to turn the witness into my witness. On destroying the adverse witness I do this in a way the jury will accept. I never embarrass, badger, or abuse a witness.

One of my favorite cross examination movie scenes is Charles Laughton in Witness for the Prosecution.  As we see from viewing this short but sweet cross, Laughton is able to destroy a fact witness in a way acceptable to the jury. He uses the classic inability to perceive facts to destroy the witness.

As we see in the clip Laughton begins by setting the foundation for inability to hear (and hearing a conversation is the basis for the adverse testimony). In setting the foundation Laughton begins by asking the witness in a booming voice if she recently applied for a hearing aid. In doing this Laughton uses change of voice (going into a less audible voice) to dramatically illustrate the witness’s hearing problem. When the prosecutor objects Laughton unfazed agrees to repeat the question.

In a booming voice Laughton restates his question with the witness admitting she has yet to receive her hearing aide. Continuing in his booming voice Laughton verbally summarizes the witness’s testimony. In doing this he paints the scene within which the witness is supposed to have heard a conversation that could not be heard by a person with poor hearing. Then by again lowering his voice Laughton demonstrates the witness’s inability to hear as she again cannot hear Laughton’s lowered voice. The damage is done. The witness is destroyed without being embarrassed, badgered or abused.

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January 31st, 2013

Cross Examination-Using Prior Statement

After watching outstanding webinars during the Pandemic of 2020 I see the most effective way to try a significant personal injury case is through the use of video sound bites. Now I am taking video depositions, ordering the digital copy and producing sound bites for trial. With this said there are cases I will try without video depositions for cross examination. So either way below are the “Old Way” and the New Way to impeach the witness with a prior inconsistent statement.

THE OLD WAY. Howard Nations, on using prior statement to impeach:

1. Illicit.  Get the witness to state the contradictory testimony. In the old way without a video sound bite stand so witness must face jury to answer.

2. Set Predicate.  Have witness agree to prior sworn statement. (Date, place, to whom). This is important in any deposition. Have a chapter in the deposition on Date, Place, Under, Oath so you can lock witness in at trial.

3. Produce. Hand clerk the deposition and have it marked as exhibit. (Give copies to judge and opposition counsel).

4. Witness Reads. Hand marked prior statement to witness and have witness read.

5. Dangle Witness.  Howard Nations points out this can be embarrassing for the witness. He recommends  going to counsel table and futz  around while witness has to either continue looking at jury or look away.

6. Return. After letting witness dangle return to cross but to a new area of questioning. This is because we do not want the witness to return to impeached topic and rehabilitate through answer to similar line of

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August 4th, 2011

Cross Exam of IME Doctor in Rear End Collision Case


This post is from an outline we recently used for cross exam of an IME doctor in a rear end collision  case. As a rule we have taken the doctor’s deposition prior to trial.

If not discussed in direct, we begin by questioning the doctor on his treatment practice.  We elicit testimony on his experience in treating patients with similar injuries sustained by plaintiff. If he has little or no prior experience in treating similar injuries he lacks credibility in understanding the nature and extent of the injuries in our case.

Factors Typically Influencing Injury. Factors known to influence injury include: Gender, Age,  Pre-Existing Condition, Significance of Impact, Design of Target Vehicle, Heavy duty Bumper and/or Tow Bar on Target Vehicle, Size of Bullet Vehicle, Awareness of Impact, Out of Position Body (head turned and distance from head rest). We question the doctor on the specific injury influencing factors present in our case. This introduces how our case is unique in that we have specific facts that make injury more likely.

Treatment of  Patient for Cervical, Thoracic, Lumbar Sprain and Strain. Sprain and strain injuries are classic rear end collision injuries. There is nothing soft about soft tissue injuries. Sprain and strain injuries are real and it is important to revisit this in cross examination. “Define sprain.” We have the doctor recognize a sprain as an injury to ligament. We discuss how  like a rubber band, once stretched and or torn beyond their elasticity, they are not the same. “Define strain.” The same holds true for muscle damage. In significant trauma the muscle fibers can be torn. When they heal the scar tissue is not the same as the initial uninjured muscle.

Typical Course of Treatment. Often the doctor will say treatment for a few weeks and the patient is good to go. This is a cop out as there are grades of sprain and strain injuries. A grade three sprain is likely a permanent injury. Here we also question the doctor on referrals he makes such as physical therapy that are similar to the treatment our client has received.

Permanent Injury Cases. Here we discuss the case where the patient has permanent injuries. Often permanent injury cases involve older people who had asymptomatic degenerative joint disease going into the collision. “Have you ever had  a rear end collision patient who has not fully recovered?” Then discuss  why patient never fully recovered. “What common factors have you found in patients who have not fully recovered?” (Gender, Significant impact, Rigidity of bumper, Tow bar, Mass of bullet vehicle, Out of position body, Pre-existing degenerative disc disease). “What can be done for a patient who has continuing residuals from a sprain and/or strain?”

Loss of Enjoyment. “What activities are typically impacted for patients who have permanent sprain and strain residuals?” Here we tie in our client’s impacted activities to the patients of the doctor who have had adverse impact to their similar activities.

Subjective Presentation. “Do you rely on the subjective presentation of your patient to assist in determining if a sprain and strain is permanent?”  Most treating doctors practice the SOAP method. The first thing they do when they see their patient is note the subjective presentation of their patient. This is important because the patient reports what her condition is. Here we can pursue this with the IME doctor by discussing why the doctor listens to and believes the patient. “How much validity do you give to the input of your patient on continuing residuals?” “At what point do you conclude your patient has permanent residual pain and limitations?”

Your IME Practice. Now we change from treating doctor questions to IME doctor questions. “What percentage of your medical practice is forensic examinations and testimony?” “How many IME’s do you perform in a typical week?” “How much do you charge per hour for an IME.” “For deposition testimony?” For trial Testimony?” We usually stop after these basic charge per hour questions, and often we do not bother with them. Our experience is the jury knows the doctor is charging and it is a waste of time to impeach on money charged to do forensic work. The exception is when the doctor only has an IME practice, it is almost only defense, and the doctor make hundreds of thousands of dollars a year. We do ask what percent of IME work involves defense v plaintiff work.

Select Discussion of IME. At this point we cover the IME discussing favorable portions and ignoring everything else. We alternate having the doctor read select favorable portions with me reading and the doctor agreeing to select favorable portions. We always cover favorable portions of the objective exam.

The Close. Depending on the doctor and what happened at the deposition we will close with a hypothetical patient with the doctor assuming he is a treating doctor. The hypothetical fits our client’s facts. We then ask the doctor if he agrees the hypothetical patient has a permanent … injury. If the doctor is not going to go with us we close on favorable objective findings from his IME.

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June 16th, 2011

The Defense Exam Doctor

In many personal injury cases the insurance company for defendant pays a defense medical doctor to do a CR 35 forensic exam of plaintiff. When the forensic defense doctor testifies he predictably states the injuries should have healed in a few weeks, there are little or no objective symptoms, plaintiff has reached maximum medical improvement, and there are no residual injuries. This post discusses how I deal with the defense medical expert.

Take Doctor’s Deposition. The CR 35 requires I receive the defense exam report. Although I use the report for cross examination, I  go beyond the report. To effectively prepare for cross examination I take the defense doctor’s deposition. At the deposition I cover the following:

You as a Treating Physician.  I ask questions that go to doctor’s practice as a treating physician. When were you a treating doctor? Where were you a treating doctor. Have you treated patients who were traumatically injured?  Surgery and non surgery? Did you ever see a traumatically injured patient for more then 10 medical visits? More then 20? How long was a typical visit?  Do you use SOAP notes? Agree symptoms may wax and wane. How much validity do you give to your patient’s subjective presentation? Did you ever treat a [patient with similar injury as client] who never fully recovered from their injury? Discuss. How do you determine if your patient has a permanent injury?

Factors Influencing Injury. Let’s discuss factors that influence injury. Agree gender is a factor (studies show women more likely injured then men). Agree age is a factor (older the more difficult traumatic injury). Pre-existing condition (injury more likely to degenerative discs/joints). Significance of impact (harder the more likely injury). Applied to rear end collision. Design of target vehicle: Rigidity of bumper (more rigid more likely injury). Tow Bar (more likely injury). Size of Bullet Vehicle (larger=more mass=more injury). On the body. Awareness of impact (unaware =no bracing=more injury). Out of position body (head/body turned=more injury). Head away from head rest (= more neck injury).

Medical Terms/Articles. What is a strain? (tearing of muscle and new scar tissue is not the same). What is a sprain? (over stretching of tendons and ligaments that do not get back to original tightness). Does a sprain/strain involve both conditions? Copy medical articles/abstracts that support your client’s injury presentation. Introduce to doctor at the deposition. Discuss. Mark as exhibits.

Staying Current. What  medical publications do you subscribe to to stay current? What internet sites do you regularly read? Name CME seminars you have attended in last 24 months. When was last time you published in peer reviewed journal. Citation.

IMEs Generally. Percentage of cases for defendants v plaintiffs. Protocol for IME discussed. (Number in a day, week, year). Amount charged per hour (Hourly for IME, for deposition, for trial). Have you ever found an injured plaintiff to be permanently injured? Discus. Agree you get subjective presentation. (Same as when treating and subjective presentation allows for understanding of condition from injured person/patient). See person only once. Exam lasts 10/15 minutes. Not there to help patient recover.

IME Specifics. Cover favorable portions of IME. Have doctor read favorable portions into record. Especially impact facts, subjective presentation, range of motion limitations, and objective findings. Have doctor discuss candor of client. Honest, straightforward fully cooperative. Don’t bother with opinions and conclusions that hurt as deposition is the time to set the table for cross examination at trial.

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January 26th, 2011

Cross-Examination Handbook-Book Review

Recently I was asked by Professor Ronald Clark to read and review his new book- Cross-Examination Handbook.

A Complete Source. Having read Francis Wellman’s book on cross-examination, which Professor Clark recognizes as a classic, I was struck by the  completeness and contemporaneousness of  Cross-Examination Handbook. This is a result of the authors: Professor Ronald Clark, Seattle University School of Law, a nationally known speaker and writer on criminal law and former prosecuting attorney in King County; Professor George Delke, University of Florida, a long time prosecuting attorney; and, William S. Bailey an accomplished personal injury trial lawyer in Seattle who also teaches at Seattle University. This trio draws on years of courtroom experience in criminal and civil trials to the benefit of  trial lawyers. Below are selected highlights.

Purposes of Cross. “The purposes of cross are to preserve and build upon your case theory or demolish the other side’s, and in this way persuade the jury.” The authors never lose perspective reminding us a trial is a story and human values are a necessary part of the story. “There is always a good versus evil component in a persuasive trial story… .” Cross-examination is an opportunity to tell your story through the adverse witness.  It is essential to do this for the jury because their decision making is driven by emotions rather then rational thought.  Use cross to appeal to the gut feeling of what is right and wrong.

Constructing the Cross. Our experienced trial lawyer authors teach to begin preparation by writing  out cross examination questions.  In doing this organize your cross into topical units (I think of my units as chapters). The authors teach cross-examine in clear simple language using nouns and verbs dropping the modifiers as they weaken speech. “Cross-examination is your opportunity to testify.”  Good cross “consists of you making substantive statements, and the witness affirming them.” Our purpose in cross-examination is to put our story before the jury. Our questions do not seek information. In fact good cross rarely involves a question. Good cross involves the lawyer making a statement the witness must agree with. Each statement should be short  and involve only one fact. Stack the short statements  one upon another to build your story.

Impeachment. At times we have a witness that must be destroyed. We will not be able to tell our story through this witness. Areas of impeachment covered by our authors include “Improbability,” Reduction -to-the Absurd,” Common Sense,” Contradictory Conduct,” and  “Prior Inconsistent Statements.” When we destroy we begin by locking “the witness into the current inaccurate testimony.” Next we show a motive for the erroneous testimony. After closing the exits for the witness, we spring the impeachment facts or evidence.

Controlling the Witness. Our authors cover dealing with the witness who fails to respond. My favorite is to “Repeat the Question.” It’s simple and it works. We ask the question. At times a witness will ramble away ignoring the question. Look away and wait for the witness to finish. Then turn to the witness and say, “now let’s try this again” and repeat the initial question. If the witness rambles again repeat the question again. The witness will soon realize he must answer the question and the jury will want him to answer the question.

Thumbs Up. The book discusses all aspects of cross-examination including character and conduct at trial, preparing cross examination, expert witness cross, and dealing with forgetters, perjurers, and other types of witnesses.  The book goes beyond the mechanical and into the psychological and jury dynamics of cross and trial. I like the writing style and the layout. I give the book two thumbs up. I am using it to prepare for my upcoming trial. Thank you professors for this valuable resource.

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December 15th, 2010

The Art of Cross Examination

On Cross Examination, here are my selected highlights from Francis Wellman, The Art of Cross Examination:

First Inquiry. After direct examination first ask if it is necessary to cross examine the witness. Only cross examine when the witness has damaged your case or when you can use the witness to further your case.

Manner of Cross Examination. As a general  rule begin in a courteous and conciliatory manner. This has a greater chance of  the witness losing any fear of cross examination. This gives a higher likelihood of inducing the witness into a discussion in a fair-minded spirit. This results in a better chance of the witness admitting the weaker links in his testimony.

The Damaging Answer. Wellman teaches  even a cautious cross examiner will at times get a damaging answer. For the experienced lawyer a damaging answer will never elicit a response outside of a matter of course attitude so the answer “will fall perfectly flat. He will proceed with the next question as if nothing had happened… .” Another alternative is to give an incredulous smile as if to say “Who do you suppose would believe that for a minute?”

The Manner of Cross. Draw out mistakes by inference rather than direct question. Use questions that allow the jury to see there is another more probable  story (to be told later on). Avoid the mistake, common among inexperienced lawyers, of making much of trifling discrepancies. “Juries have no respect for small triumphs… .” Under no circumstances put a false spin on the words of the witness. There are few faults more fatal.

The Sequence of Cross. If you have a document written by the witness in which he takes a contrary position to his direct, avoid the mistake of showing the document to the witness before setting the predicate. Rather, begin by having the witness repeat the statements he made in direct that will be contradicted by the document. Then have the witness agree this is his statement and there is no doubt. Then introduce the prior inconsistent statement by having the witness agree to its authenticity. Next with the foundation set read the inconsistent statement. Move away from the witness for a period of time saying nothing as the jury looks at him sitting before them with his inconsistent statement. When you resume move on to a different point. Always end with a victory. “If you have done nothing more than to expose an attempt to deceive on the part of the witness, you have gone a long way toward discrediting him with your jury.”

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December 9th, 2010

Great Cross Examination-F. Lee Bailey

In researching the topic of cross examination, I came across the classic treatise on the subject: Wellman,  The Art of  Cross-Examination (1903). Mr. Wellman, Harvard Law School Valedictorian class of 1878, was a career trial lawyer who tried cases in New York for over forty years. His book, although dated and a reflection of its time, remains in my opinion a must read for trial lawyers.

Wellman teaches cross examination requires the ” greatest ingenuity;  a habit of logical thought; clearness of perception in general;  infinite patience and self-control… .” It requires the  power to read a person’s mind intuitively, to judge character by the face of the witness, and to appreciate the motive of the witness.  It requires the ability to act with force and precision, a complete knowledge of the subject matter, extreme caution, and above all “the instinct to discover the weak point in the witness under cross examination.”

In the cross examination by F. Lee Bailey of Sgt. David Rossi  in the O.J. Simpson trial we see all of the qualities articulated by Wellman. Bailey demonstrates ingenuity and logical thought.  He uses logical thought to damage Rossi’s testimony by making Rossi appear illogical.

He demonstrates self control as he rolls with Rossi in a stream of consciousness way.  Bailey uses his  masterful knowledge of the facts to further demonstrate the lack of logic in Rossi’s testimony.   Above all Bailey gets to the weak points of Rossi’s testimony trough patientce and logic.  The result is great cross examination and the destuction of a state witness.

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