The jury instructions provide the footings for the building of an effective Cross
An excellent Cross is focused tightly on the material facts (Facts) in dispute. A Fact is only material if it bears directly on an Issue that must be decided to resolve the overall controversy—otherwise, it is immaterial. The Litigator should not waste time probing the immaterial aspects of a hostile witness’s direct testimony. If it’s not critical to his Close, he should leave it alone, even if he can prove the witness to be very wrong.
Impeaching a witness on immaterial facts (e.g., non-Facts) can be a hard temptation to resist, particularly where it can be done easily and quickly. I had to learn this lesson the hard way, having failed to resist the temptation to impeach witnesses on a crazy quilt of inaccuracies over the years, ranging from the number of times they’ve been married to the very year of their birth.
Looking back, I would categorize most of these testimonial misstatements as the result of casual mistake or careless exaggeration rather than a well-formed intention to prevaricate. But in the moment, my lawyer brain would tell me if a man will lie about his own age, he’ll lie about anything and forge ahead like Perry Mason, thinking that surely the jury will care about this.
However, my post-trial interviews with jurors have never confirmed that belief. Over time I’ve learned that the average juror is pretty adept at separating the important from the mundane and that my failure to do so looked to them like lawyer nitpicking rather than effective Cross. Ultimately, the jury only cares about the Facts that apply to the law the judge gives them—everything else is a waste of time.
My lack of discipline on Cross was exacerbated by my lack of a firm grasp on the material versus the immaterial. The reason for this was that I never started thinking about the jury instructions (Instructions) until the judge told me to do so. This usually occurred on the second or third day of the trial when the judge realized that at least some of the plaintiff’s claims were going to survive directed verdict. Not wanting to waste the jury’s time as the lawyers floundered around to prepare the Instructions after the close of evidence, the judge’s intent was to get us moving on them beforehand.
This would either raise or lower my hopes depending on whether I was plaintiff or defendant. But in neither case would it lead me to do what the judge actually intended, which was to sit down and prepare the Instructions that I was going to propose during the charge conference. At most, I would think about preparing them, but that wasn’t enough because only by actually preparing them would I know what was material.
It wasn’t until I had tried about ten cases that I realized how ineffective this was. As I pointed out in the previous chapter, the judge’s voice is the last one that the jurors will hear before deliberation. To them, he is the ultimate authority and the law he gives them on the Issues is their guiding star. By failing to consider that before I started my Cross, I could not possibly conform my examination tightly to the Facts. Realizing this led me to begin preparing the Instructions prior to the start of the trial rather than in an exhausted rush the night before the charge conference (and only then in order to avoid the judge’s ire).
In fact (and this took another ten trials for me to discover), even pre-trial was too late for the preparation of my Instructions. Although that method did provide me with a guide for my Cross, it was still short sighted. Since much of Cross is Impeachment by prior inconsistent statements, and many of those statements are harvested from the witnesses’ deposition testimony, I really needed to prepare my Instructions before taking depositions. And since (I eventually realized) deposition is fueled in great part by the adverse party’s interrogatory responses and produced documents, I actually needed to prepare my Instructions even earlier—prior to propounding discovery. This epiphany led me to the Second Principle Of Cross: Start With The Jury Instructions.
Now, having learned to Start With The Jury Instructions, when I am the plaintiff I prepare my Instructions no later than just after my receipt of the defendant’s answer. That way, I am forced to evaluate the possible instructions related to the defendant’s affirmative defenses and counterclaim (if there is one), as well as my own affirmative defenses in the reply. When defendant, I do this no later than just after the plaintiff’s reply to my counterclaim so that I can evaluate my Opponent’s affirmative defenses to my counterclaims.
By evaluating the ultimate law the judge will give the jury on all of the parties’ claims, counterclaims and affirmative defenses I am able to draft my discovery requests toward obtaining the evidence I will need to satisfy my burden of proof and defeat that of my Opponent. Otherwise, I am just asking questions in the dark in the hope that they will lead to the light.
For example, if the defendant asserts the affirmative defense of “failure to mitigate”, I propound an interrogatory asking him to identify every instance in which my client neglected to use ordinary care to avoid the harm he sustained as a result of the defendant’s (alleged) breach of contract. This is right out of North Carolina’s pattern jury instructions and one of the elements the defendant has the burden to prove to establish his defense during trial. I then use his interrogatory answer (whatever it may be) as the basis of a line of questioning during his deposition. If he punts by saying he’s not sure (which is often the case because it’s a boilerplate defense that came from his lawyer) I say, “well, if you ever come up with anything will you have your lawyer let me know before trial?” The witness will almost always say “sure” because he is happy to have me move on to something that makes him less uncomfortable.
Then, at trial, when the defendant’s counsel suddenly remembers the defense and tries to elicit testimony to support it, I object on the grounds that he never supplemented his discovery responses. If the judge lets it in anyway (a fifty-fifty proposition), I point out to the witness on Cross that he had punted in his interrogatories and his deposition, and that he had also failed to follow through on his promise to me to have his lawyer let me know that he had come up with something. If he denies that, or simply can’t remember, I impeach him with the transcript.
If, as is usually the case, the witness has no explanation for this (because it’s his lawyer’s doing after all), I’ll wind up with “well, that’s not really fair is it sir?” This is one of those rare occasions on Cross where an open-ended question is acceptable because the answer doesn’t matter. If he says “no”, that’s great. If he says “yes”, I argue to the jury during Close that the witness has an unreliable concept of fairness. What’s actually best is if he just sits there dumbfounded for a few seconds. The jury gets the point.
Although it is hard to do with trial a year or so off at least (lawyers being natural procrastinators), I have learned that pre-discovery is the correct juncture along the Critical Path of litigation to prepare the jury instructions if I am ultimately going to effectively Cross To Close. Because I prepare the jury instructions before I draft my discovery requests, my interrogatories and document requests are tightly focused on gathering the evidence that I will need to meet my burden of proof and defeat my opponent’s effort to meet his.
To Cross effectively, Start With The Jury Instructions.
Accuracy, Bias and Capacity are the foundation of an effective Cross
The Instructions provide the Litigator with the footings of an effective Cross, but the foundation for the structure comes from his proper alignment of the four categories of impeachment that the Litigator has available to call a hostile witness’ testimony into question. These four categories are Accuracy, Bias, Capacity and Diminishment—the “ABC/Ds” of Cross.
The first three categories (A,B and C) are directed toward the convincing force of the witness’ testimony, while the final one (the /D) is aimed at the character for truthfulness of the witness. While the Litigator uses the ABCs to put doubt in the jurors’ minds about the witness’ testimony, he uses /D to induce doubt about the witness himself.
While the /D is most tempting category for the Litigator, the majority of his examination should be focused on the ABCs, as it will be these categories that will most closely conform to the Facts, the Issues and the judge’s ultimate Instructions to the jury about their duty to assess the witnesses’ credibility—he will tell them that:
You are the sole judges of the credibility of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all, or any part, or none of that testimony. In determining whether to believe any witness you should use the same tests of truthfulness, which you apply in your everyday lives. These tests may include: the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified; the manner and appearance of the witness; any interest, bias, or partiality the witness may have; the apparent understanding and fairness of the witness; whether the testimony of the witness is sensible and reasonable; and whether the testimony of the witness is consistent with other believable evidence in the case. NCPJI 101.15
It is directly from these tests of creditability that the judge provides to the jury that the ABCs are drawn:
*By testing whether the testimony of the witness is sensible and reasonable; and whether the testimony of the witness is consistent with other believable evidence in the case, the jury weighs the Accuracy of his testimony
*By testing any interest, bias, or partiality the witness may have and his apparent understanding and fairness, the jury determines the degree to which Bias renders the testimony less convincing
*By testing the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified, the jury assesses the degree to which the witness’ Capacity impacts the convincing force to his testimony
By building his Cross on the foundation of the ABCs, the Litigator provides the jurors with the substance they will need to conduct the tests that the judge will instruct them to use to determine the credibility of the witness testimony that they have heard. Because he is Crossing To Close, the Litigator uses his examination to raise doubts in the jurors’ minds that he will exploit during summation in order to persuade them that the hostile witness testimony they have heard lacks the convincing force necessary to satisfy his opponent’s burden of proof.
Diminishment is the cherry, not the cake
Diminishment (/D), the fourth category of Impeachment, should take up the least amount of time on Cross. The Litigator uses Diminishment to erode the jury’s belief in the truthful character of a hostile witness. Unlike Accuracy, Bias and Capacity—Diminishment is not directly related to the Facts and Issues. Rather than an attack on the convincing force of the witness’ testimony, it is a suggestion to the jurors that the witness possesses the (relatively) immutable flaw of mendacity in order to render his testimony unreliable in their minds—regardless of how convincing it is on the merits.
Though similar, Diminishment is distinct from Bias in that the former is aimed at a trait of the witness whereas the latter is situational. Thus, a witness may be totally disconnected to the parties and Issues at hand (and thus be immune from attack on Bias grounds) but have a prior conviction for perjury that opens him up to Diminishment. Whereas the Pope (as spotless as his robes may be in terms of truthfulness), is still impeachable on Bias grounds if the Facts concern the welfare of the Catholic Church.
The Litigator must take great care when engaging in Diminishment. One reason for this is that the rules of evidence do not generally allow the admission of character evidence that is not relevant to the Facts and Issues. However, there are exceptions that apply to Cross, the most important of which is found in Evidentiary Rule 608, which allows the Litigator to attack a witness’ reputation for untruthfulness and even question specific instances of his conduct if they are probative of his character.
This is not to say that Rule 608 is a blank check to be drawn against the bank of Diminishment. The Litigator’s “inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally. The result is to sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less unattractive”.
In other words, Diminishment is fair game for truthfulness, but not for the purpose of attacking other flaws in a the witness’ character. He may well hold unsavory opinions about about orchid cultivation or often fail to pick up his dog’s poop from his neighbor’s yard, but these are not legitimate areas of inquiry under Rule 608.
Another reason for the Litigator to use Diminishment with caution is that it makes the jury very uncomfortable. It is hard to watch a man’s character being undermined. Thus, it is best for the Litigator to do it quickly, deftly and without histrionics. Don’t try to bully the witness into agreeing that his prior perjury conviction makes it very likely that he is also lying now, or even that it should be a reason for the jury to take his testimony with a healthy grain of salt. Leave that for Closing without piling on during Cross.
The perils of piling on were made clear to me in a legal malpractice trial I once had (I represented the plaintiff) where my star witness was an attorney who had been disbarred in another state for fraud. He wasn’t an expert witness (I’m not that bad of an attorney), but rather a fact witness who was instrumental to the damage element of my client’s claim. Without him, we really had no case, so I had no choice but to use him despite his flaws. During his direct, I had the disgraced lawyer explain the circumstances of his disbarment in an effort to poison the well. To me, he sounded truly repentant, but I could see that the jury was highly skeptical of him. Why wouldn’t they be? What could be worse than a lawyer who has been disbarred for lying? His lack of character for truthfulness was self-impeaching.
When I turned the witness over to my Opponent for cross-examination, I was fairly confident that I had met my burden of production but I very afraid that I had already lost my burden of persuasion. My hope was that the jury would dislike the lawyer-defendant more than my lawyer-witness so that I could eke out a win by default. All my Opponent had to do was spend twenty minutes walking through the ABCs and finish with two minutes of /D to leave the lasting image in the jury’s mind of a witness whose character for truthfulness was demonstrably in the basement. It was a layup.
And yet he missed it, badly. Instead of starting with the ABCs to foster doubt in the jury’s minds about the Facts, he launched directly into full-throated Diminishment with a zeal that led him to him to immediately violate the Fourth Principle Of Cross: Don’t Repeat Direct.
Even though I had already gotten the details and circumstances of my witness’ disbarment out on direct, my Opponent went over it again in full detail, asking almost the same questions I had asked him twenty minutes earlier. As my witness repeated his testimony—almost verbatim—I could see the jury begin to squirm and side-eye each other. Squirming and side-eyeing are two major indicators that you are losing the jury, but my Opponent (in his zeal to Diminish) was oblivious to the signs and pressed on until my witness had repeated every detail of his disbarment.
When it was over, my Opponent didn’t seem to know what to do next. Having methodically marched the witness over the same uncomfortable terrain on cross-examination that I had on direct, he finally appeared to notice the jury’s squirming and side-eyeing and (perhaps to give the whole exercise some meaning) violated the Fifth Principle Of Cross: Don’t Ask For An Explanation. “Why then,” he asked my witness, “should this jury believe anything you have to say? Can you explain that?”
As it turned out, he could. My witness (because he had been asked) gave a very good explanation. He took full responsibility for the events that had led to his disbarment and humbly described the devastating impact it had on his life. And, while it had resulted in the loss of the privilege to practice the profession he loved, because it ultimately led him to repent from a broader pattern of misconduct in his life he really had no regrets—other than having lost the trust of his clients, which he hoped one day to win back.
“So,” he said—looking directly at the jury, “the reason why you should believe me is that I am a man chastened and humbled by horrific failure. I will never lie again.”
Halfway through my witness’ explanation my Opponent (when he realized how insanely effective it was) objected on relevance grounds. The judge overruled, saying “not only is it relevant, but he’s only answering the very question you asked him counsel.”
By repeating the direct, asking for an explanation and treating Diminishment as the cake rather than the cherry, my Opponent managed to yank defeat out of the jaws of victory—at least with this particular witness. He gave the man the opportunity to redeem himself in the eyes of the jurors by demonstrating that he had learned obedience from what he had suffered, and the jury did what juries often do—it dispensed grace, in the form of taking the man at face value rather than tarring him with the mistakes of his past.
While it was happening, it was all I could do to sit quietly and let it unfold. I knew precisely what a gaffe it was because it was the same gaffe I had made myself about a dozen times before I learned the ABC/Ds of Cross.
Alwasys go easy on the Diminishment.