Prior inconsistent statements, external evidence and logic are the three primary sources of Impeachment material

While the primary purpose of Cross is to blunt the effect of a hostile witness’ testimony about Facts and Issues (Doubt Casting), the Litigator will sometimes use Cross to gather evidence that he needs to meet his own burden of proof. When so engaged, the Litigator suspends his effort to cast doubt on the direct testimony the jury has just heard from the witness so that he can elicit testimony that he wants the jury to find credible. This is a tricky dance for the Litigator to execute, as he is essentially asking the jurors to disregard as incredible some of the witness’ testimony, while simultaneously urging them to take other statements as true and accurate.

Because it so difficult, the Litigator should not try to gather evidence on Cross if there is a friendly witness who can provide it through direct. Moreover, even when there is no other way, evidence-gathering on Cross should be limited to what is solely necessary to meet the Litigator’s burden. It should be as concise as possible, with the majority of Cross focused on Doubt Casting.

Doubt Casting is done primarily through Impeachment of direct testimony by calling its integrity or validity into question. The great majority of subject matter for Impeachment comes from three sources: prior inconsistent statement, external evidence and logic.

A prior inconsistent statement (PIS) may consist of anything the witness himself has said or written prior to the testimony that is being impeached. A PIS may be a previously transcribed statement under oath such as a deposition, an affidavit or an interrogatory response. It also includes non-testimonial documents (like letters, emails or texts) or verbal utterances (such as speeches, telephone conversations or meetings).

The universe of written and verbal PISs exist along a continuum of effectiveness from deposition transcripts (being the strongest) and descending to unrecorded statements made during casual conversations (being the weakest). The placement of a particular PIS along the effectiveness continuum dictates the various technique the Litigator should employ in using it (which we will describe in detail later), but the essential factors applicable to the effectiveness of all PIS’s are: 1) reliability (of its means of recording), and 2) formality (of the occasion during which the PIS was made).

A deposition transcript is both very reliable (the skill and accuracy of court reporters is universally accepted and recognized) and very formal (the witness is administered an oath and is thus fully aware of the importance of the deposition). In contrast, statements made during casual conversations are very unreliable and very informal. They only exist in the memories of the third-party who heard them (and related them to the Litigator), so they are subject to faulty recollection, bias and misunderstanding. Likewise, because they arise casually, they leave the hostile witness being impeached the half-cracked door (through which to escape) of admitting that he did make the PIS but was only kidding, being sarcastic or engaging in hyperbole.

The purpose of Impeachment by PIS is to demonstrate to the jury that the witness’ current position (the one he has just testified about on direct) is not the only position he has taken on a material fact in dispute. It can be used to erode his credibility on the ABCs as well as to Diminish his character for truthfulness. Under certain circumstances, it can also be employed for Evidence Gathering (i.e., to prove the truth of the matter asserted) by offering it for the truth of the statement rather than to simply impeach the witness.

The second category of Impeachment is by external evidence (E2), which is any document, object, idea or other thing of which the witness is neither the author nor the creator—it is something external to him. As with the PIS, the E2’s primary purpose is Doubt Casting through the ABC/Ds. Evidence Gathering through E2 is possible but rare, because the document, object or idea will generally not be admissible into evidence to prove the truth of any disputed Fact.

The distinction between Evidence Gathering and Doubt Casting through E2 can be a bit blurry and tricky. In my experience, judges are very lenient in civil cases on Cross when it comes to E2. For example, I once tried a case for a plaintiff mini-storage developer against a defendant land-owner who had pulled out of a contract at the last minute due to cold feet. My client had testified on direct that the county where the land was located was a viable location for a mini-storage facility because the area was underserved.

On Cross, my Opponent showed my client the 10 or so pages in the phone book (this was obviously a long time ago) that listed the many already-existing mini-storage units in the county. The judge overruled my hearsay objection on the grounds that the phone book was offered for the purpose of Impeaching my client’s testimony, not for the truth of establishing how many mini-storage units there were in the county. My Opponent made a pretty good argumentative point that it wasn’t the number units that actually existed that was at issue, but the number of units the phone book said existed, because it was this that his client had relied upon in deciding not to go through with the deal. The jury, he said, was free to assess whether his client’s reliance on the phone book was reasonable or not.

The third category of Impeachment is Logic . Or, maybe better stated: illogic, in the sense that the Litigator casts doubt on the witness’ testimony by pointing out that it is founded upon an illogical basis. In a construction case I once tried, the plaintiff testified that my contractor-defendant had failed to properly install all of the three-hundred or so windows that were in his four-story building. Because the allegedly faulty installation could only be viewed by removing the drywall behind the windows (which was prohibitively expensive), the plaintiff could only testify to the state of four window installations that he had actually exposed and inspected. Based on those four, he contended that all 300 windows were faulty.

On Cross, I pointed out to the witness that his belief that all of the windows were improperly installed was only based on an actual inspection of about 1% of the units, and that all four windows he had exposed were on the same floor right next to each other. In other words, if it was supposed to be a sample, it wasn’t random. My goal was to use illogic of the witness’ foundation to cast doubt upon his Capacity to testify credibly about the installation of the windows.

Effective Impeachment is best done through a three-punch combination

PIS, E2 and Logic are the meat of Impeachment, but how is that meat best served? There are many ways, but I use a simple three punch Impeachment combination (3PI) that I learned by watching other Litigators Doubt Cast on my witnesses. It starts with the quick left jab of You Said . . ., followed by the right cross of But, . . . , and is completed by the left uppercut of So . . .

While it won’t work for every situation, most of Cross (regardless of whether it is ABC or /D) can be built upon and modified from the 3PI:

1) You Said . . .

2) But, . . .

3) So . . .

The You Said sets the stage for the point of the witness’ direct testimony that the Litigator intends to Impeach. It gives the jury a frame of reference and sets the witness up for what is coming next. It is like a jab in boxing in the sense that it alone won’t hurt the witness much but is a necessary predicate for the punch that will.

The You Said should not be a voluminous repetition of everything the witness said in support of a damaging testimonial point that he made during his direct examination. Rather, it is only a summary of the point that illustrates its bearing upon a material Fact in dispute.

For example, let’s say a witness testified on direct that my client failed to give him proper notice of a contractural default, and described in great detail the form of notice that the contract required, what my client actually did and how that was not sufficient. Instead of repeating all that on Cross, I just say “You Said my client sent you an email instead of a letter to notify you of the default”. This summarizes his point and advises the jury (and the witness himself) why it is important.

There are three possible responses a witness might have to the You Said. He can say “yes, I did”; “no, I didn’t”; or “that’s not exactly what I said”. With the You Said, the witness’ answer doesn’t matter as long as the question is generally correct. If the Litigator has captured the testimonial point with reasonable accuracy, the jury will know that the witness is just quibbling if he denies it. Thus, there is no reason to waste time trying to get him to admit it. Even if the witness flatly denies the You Said, I just move on quickly to the right cross of But . . .

The But is where the Litigator exposes the witness to the meat of Impeachment by challenging him with PIS, E2 or a point of Logic. For example, after the jab of “You Said my client sent you an email instead of a letter to notify you of the default”, I would throw the right cross of:

But, didn’t you testify during your deposition that receiving notice by email had not caused you any prejudice—PIS;

But, didn’t your comptroller write a letter to my client acknowledging the notice of default you received by email—E2; or

But, isn’t it true that you had actual notice of the default when you received the default—Logic.

Unlike the You Said where the witness’ answer doesn’t matter, with the But the Litigator must get a generally affirmative response from him to be effective. Thus, if the witness denies having testified inconsistently during his deposition or that his comptroller wrote the letter, the Litigator must be prepared to show him the transcript and the letter so that he can get the witness to concede the point or at least look ridiculous in denying it.

It is the same with Logic, although the methodology is a bit more complex. For instance, if the witness denies actual notice, the Litigator should break the larger point down to the smallest parts necessary to get a sufficient series of micro-admissions from the witness to establish the But in the minds of the jurors as substantially true.

For example:

Litigator: Exhibit 10 is a paper copy of the email you said my client sent isn’t it?

Witness: It appears to be.

Litigator: The recipient of the email is shown as, correct?

Witness: That’s what it says.

Litigator: That was your email address on the day this email is dated, June 1, 2013.

Witness: I believe it was.

Litigator: The sender of the email is shown as, right?

Witness: That’s what it says.

Litigator: That was my client’s email address at the time wasn’t it?

Witness: I think so, but that doesn’t mean he actually sent it.

Litigator: Sir, you don’t have any evidence that this email is fake do you?

Witness: No . . . I was just pointing out that I can’t say for sure he sent it.

Litigator: If my client takes the stand and testifies that he did send it, you have no evidence that would contradict him do you?

Witness: No, I guess I don’t.

Litigator: All right, looking at the email, doesn’t the subject line read “Notice Of Default”.

Witness: That’s what it says.

Litigator: And doesn’t the second paragraph begin with the sentence “you are in default of the contract for failure to perform”.

Witness: That’s what it says.

Litigator: When you read this email, you had actual knowledge that my client considered you to be in default.

Witness: That would only be true if I read the email.

Although the witness has not fully conceded the point of actual notice, the Litigator has obtained enough micro-admissions to convince the jury that it is substantially true. This invokes the Sixth Principle Of Cross: Substantial Truth Is Truth Enough. Although the Litigator could probably beat the witness into conceding the point of actual notice more fully, it would take more work, and work takes time and time is the Litigator’s enemy. He always bears in mind the First Principle Of Cross: The Shorter, The Better. Burning valuable time on Cross to get full agreement when you already have Substantial Truth is ineffective. So, he moves on.

Which brings us to the last step in the 3PI, the uppercut of So. The So is the linchpin to the argument the Litigator will ultimately make on Cross. Ideally, it is the conclusion he wants the jurors to draw for themselves based on the damage the But did to the You Said. In our example, it would be simple: “So, it doesn’t matter that the notice came to you by email”.

Like the You Said (and unlike the But) the witness’ answer to the So doesn’t matter. In fact, because the So is designed to become part of the argument during Closing, it itself is most likely arguable. The Litigator expects the witness to push back against it, so he lets him. The goal is not to win the argument with the witness during Cross, but to have an argument to make to the jury during the Close by casting doubt on the witness’ direct testimony. The 3PI is is an effective way to consistently do that.

Low expectations produce the best results

Because the average hostile witness has watched enough TV to know that the Litigator will use Cross to Doubt Cast on his direct testimony, he will be on the defensive from the moment you open your mouth to ask your first question. In fact, the less experienced the witness is in the courtroom the more defensive he will be, because he will be afraid of making a mistake due to his ignorance of the process. As a result, the hostile witness will instinctively resist being led in any direction that he perceives the Litigator wants him to move. That resistance will increase exponentially if he thinks he is being tricked or doesn’t clearly see where you are going (which is the same thing in his mind).

Since resistance burns time, and time is the enemy, I long ago abandoned the tactic of trying to get the witness to put his own head in the noose and jump off the stool without realizing what he was doing. Through failure, I have learned three immutable truths that have served me well on Cross: 1) I’m not as smart as I think I am; 2) most hostile witnesses are a lot smarter than I’d like them to be; and 3) aiming for the Code Red will cause me to miss the Mess Hall.

The first two truths are self-evident, but the third takes a little explaining—even if you’ve watched the trial scenes in A Few Good Men as many times as I have. Code Red refers to a Marine Corps order of extra-judicial punishment designed to “correct” individual behavior that is perceived to be beyond the reach of traditional (and legal) means of redress. In other words, it is corporal punishment administered by a marine’s peers at the illegal instigation of his chain of command.

In the movie, a Code Red from Jack Nicholson’s character results in the unintended death of one of the marines in his command. Tom Cruise is defending a private and his corporal who, as the men who actually administered the punishment, are being held criminally responsible for the marine’s death. Their defense is that they were just following orders (e.g., the Code Red), which the chain of command (at the top of which is Nicholson) denies.

Nicholson plays a great hostile witness. He bristles with arrogance and disdain for men like Cruise’s character (who is a Navy JAG, and thus beneath the marine-Nicholson on the pecking order of machismo) for having the temerity to question the physical protection provided to him by men of action like Nicholson. He’s also smart, crafty and of course wary—because he did in fact order the Code Red.

Testifying on Cold-Cross (the government doesn’t need him to prove its case), Nicholson sees little risk of being exposed as the instigating force of the marine’s death, as he is insulated by the code of silence within the chain of command in between him and the defendants. The only way that Cruise can prove that Nicholson ordered the Code Red is to get him to admit it himself—essentially, to confess to taking part in a criminal conspiracy.

As difficult as that should be, it is exactly what Cruise does. Through chicanery, subterfuge and repetitive pricking of Nicholson’s boundless pride, Cruise induces him to not only admit to having ordered the Code Red, but also into providing an angry justification for his actions that completely seals his fate. It’s a great scene with a fairly accurate depiction of the interplay between witness, counsel and judge. The only flaw is that the outcome is completely unrealistic. No matter how skillful a Litigator is, he is just not going have any Code Red moments. A witness will simply shut down (out of self-preservation) long before he will admit under oath that he committed murder. In reality, without a third-party witness willing to testify that he heard Nicholson order the Code Red, Cruise would never have been able to prove it. At best, he would only have been able to Doubt Cast on the assertions of the government’s witnesses that there had been no Code Red and that the defendants had acted sua sponte.

In most human endeavors aiming high is a good thing because it will lead you to a good outcome even if the original goal was always unattainable. But that premise does not apply to Cross. If you aim for the unattainable Code Red, you expend valuable time and jury goodwill that will keep you from the achieving the realistic Doubt Casting that is possible.

Take the testimony of Noah Wyle’s character in A Few Good Men, another corporal from the same unit as the defendants. He testifies that the unit has a written standing operating procedure (SOP) that governs every aspect of the unit’s operations. The prosecutor (Kevin Bacon) shows him a copy of the SOP and asks him to show the jury the section that governs the Code Red. Of course—since it is an illegal activity— there is no such section.

As Bacon’s character turns away to pass the witness to the defense, Cruise grabs the SOP out of his hand and asks the Wyle to turn to the section that shows where the mess hall is. As with the Code Red, there is no such section. Cruise then asks how a marine would know where to go when it was time to eat if the location of the mess hall is not in the SOP. The witness answers that he would just follow everybody else.

In this way, Cruise’s character casts doubt on the government’s assertion that the Code Red is a nonexistent product of the defendants’ desperation by demonstrating that not everything that is important to the unit is in the SOP. In fact, some things are so well known and understood among the men in the unit that they don’t need to be written down.

I think of this as plucking small Facts from the low-hanging branches of the Impeachment tree, which I call a Mess Hall to remind myself not to let my zeal to nail a high-drama Code Red cause me to miss valuable (but less dramatic) opportunities to Doubt Cast. An effective Cross is built upon a series of Mess Halls—low expectations produce the the best results. Code Reds will only distract you and waste time.