Pattern Cross-Examinations

Description

Succeed at cross-examination with these proven strategies, angles of attack and sample questions

Cross-examination is not a pleasant endeavor. You are attempting to discredit and perhaps embarrass someone in front of a room full of people. There are times when it will be necessary to go for the jugular. If you have your prey close to a fatal admission, you cannot let him escape because you feel sorry for him or you are scared. Your duty to your client is to expose him. Walter Simpson’s Pattern Cross-Examinations will show you how.

Loaded with practice tips culled from the author’s 40 years of in-the-trenches experience, Pattern Cross-Examinations includes model cross-examinations for 59 witnesses (plaintiff and defense) in common fact patterns arising in 10 areas of civil litigation: auto accidents, premises liability, medical malpractice, breach of contract, employment discrimination, products liability, insurance policy litigation, civil rights, malicious prosecution, and civil assault and battery.

Pattern Cross-Examinations will teach you:

• How to control the witness with leading questions [§1:04]
• When to ask an open-ended question [§7:24.3]
• How to avoid asking “one question too many” [§1:55]
• How to use cross-examination to build a strong closing argument [§7:24.5]
• How to control a confrontational witness [§8:29.4]
• How to handle an argumentative witness [§4:18.3]
• How to undermine an expert’s credibility at the outset of the cross-examination [§2:17.11] and effectively control the cross-examination [§2:10-2:14]
• When and how to ask a “summary” question [§11:08.7]
• When to stop asking questions and trust the jurors to draw the appropriate conclusions on their own [§3:16.2]
• Why it is important to expose a witness’ bias at the beginning of cross-examination, and how to do this effectively [§9:05.1]
• When to object [§1:04]

Practice Pointers

Here are just a few of the hundreds of practice pointers in Pattern Cross-Examinations:

In a breach of contract case

Highlight every breach of the contract by the defendant
Once you have established the plaintiff’s performance under the contract, turn to the defendant’s failure to perform. Explore each and every breach by the defendant, no matter how small. A jury may be willing to overlook one or two small breaches, but is unlikely to overlook a long list of breaches. [§6:03.3]

In an auto accident case

Use the plaintiff’s medical history/treatment to your advantage in cross-examination and closing argument
In an attempt to trivialize the treatment he received before the accident, the plaintiff says he regularly went to the chiropractor for “tune-ups.” This raises a credibility question, which can work to your advantage. Use this phrase (“tune-ups”) as much as possible during the rest of the trial, particularly during closing argument. In doing so, you can almost reduce the case to the argument that if the plaintiff had “tune-ups” before the accident, then the accident clearly did not cause any of the problems he is claiming in this case, and he should recover nothing. [§3:12]

In a medical malpractice case

Tie the E.R. doctor to the medical records
Determine early in the cross-examination whether the doctor has any independent recollection of the patient. If he does not, then you can hold him strictly to what is noted in the medical chart. If he claims to remember anything in addition to what is in the chart, demonstrate how unlikely it is that the doctor would remember a fact about a patient he saw one time, one or more years ago. [§5:08]

Make the doctor acknowledge the duty of care he owes his patients
Make the doctor admit that he has a duty to comply with the appropriate standard of care in treating your client, and that if his treatment falls below the appropriate standard of care, he can be held responsible for the harm he has caused. This is something doctors are taught in medical school and are very familiar with in terms of malpractice insurance. No doctor will refuse to make this basic admission. Once you have this admission, point out the simple steps (e.g., making a phone call) the doctor could have taken in treating your client. [§5:08]

When cross examining an expert

End on a point of agreement
Never end your cross-examination immediately following a damaging answer on a key issue in the case. By falling back on an area of agreement, you can appear, at least, to be ending on a successful note. For example, if you have had no success on liability issues with the expert, finish with:

Q: But you do agree that the plaintiff sustained severe, permanent injuries, isn’t that right?
A: Yes, she did.
Q: And there is no question that the injuries were the result of the surgery done by Dr. Jones on    June 15, 2007, isn’t that correct?
A: That is correct. [§2:25]

Gain concessions by phrasing trial questions similarly to deposition questions
You will, no doubt, obtain several favorable admissions during the expert’s deposition, even if they are not major concessions. Use this deposition testimony to control the expert at trial. By framing your questions similarly to the questions you asked in the deposition, you can force the expert to either agree with you or subject himself to impeachment with a prior inconsistent statement. Either way, you win the point. [§2:11]

Review every item on the expert’s bill
Rather than just ask about the total amount the expert billed on the case, it is more effective to go through each and every activity for which the expert has charged a fee. This allows the jury to compare the work actually done with the amount and time charged, and involves the jury in calculating the total. Do the arithmetic on an easel or chalkboard so that the jury can work the numbers with you. [§2:17.3]

In all cases

When the witness responds with sarcasm
A jury does not appreciate this type of answer. It is not responsive to the question, and it is argumentative and sarcastic. You have a number of choices, depending on the nature of the witness and your comfort level. You can  . . . . [§4:18.3]

Effective use of repetition
The preceding series of questions illustrates how the use of repetition can be effective in cross-examination. You have created a catalog of the defendant’s poor quality work that the jury will remember during deliberations. Plus . . . . [§6:03.8]

Let testimony do the work of an objection
Here, you could object to the self-serving portion of this answer that is not responsive to the question, and ask the judge to instruct the jury to disregard everything after the word, “No.” A better option, however…

REVISION 1 HIGHLIGHTS

This update to Pattern Cross-Examinations features 10 new sections, with model opening statements, cross-examinations, jury arguments, closing arguments, and more. These updates enhance this book as a source of reliable, practical advice based on decades of the author’s experience.

NEW AND SIGNIFICANTLY REVISED SECTIONS:

Chapter 1, Governing Principles of Cross-Examination
● NEW! §1:64 Closing Argument (Defendant Drinking Before Accident)
● NEW! §1:68 Closing Argument (Plaintiff Has Felony Conviction)
● NEW! §1:72 Closing Argument (Defendant Admints Fault in Auto Accident)
● NEW! §1:76 Closing Argument (Plaintiff Wants to “Get Rich” With Lawsuit)

Chapter 2, Cross-Examination of Expert Witnesses
● NEW! §2:17 Closing Argument Re: Bias
● NEW! §2:22 Jury Argument Re: Basis for Opinion
● §2:26 Standard of Care Issues

Chapter 5, Cross-Examination in Medical Malpractice Cases
● NEW! §5:18 For the Plaintiff (ER Malpractice Closing Argument)
● NEW! §5:19 For the Defendant (ER Malpractice Closing Argument)
● NEW! §5:36 For the Plaintiff (Dental Malpractice Closing Argument)
● NEW! §5:37 For the Defendant (Dental Malpractice Closing Argument)

ABBREVIATED TABLE OF CONTENTS

CHAPTER 1: Governing Principles of Cross-Examination

CHAPTER 2: Cross-Examination of Expert Witnesses
CHAPTER 3: Cross-Examination in Auto Accident Cases
CHAPTER 4: Cross-Examination in Premises Liability Cases
CHAPTER 5: Cross-Examination in Medical Malpractice Cases

CHAPTER 6: Cross-Examination in Contract Disputes
CHAPTER 7: Cross-Examination in Employment Cases
CHAPTER 8: Cross-Examination in Products Liability Cases
CHAPTER 9: Cross-Examination in Insurance Policy Litigation

CHAPTER 10: Cross-Examination in Civil Rights Cases (Actions Based on Violation of 42 U.S.C. §1983)

CHAPTER 11: Cross-Examination in Malicious Prosecution Cases

CHAPTER 12: Cross-Examination in Civil Assault and Battery Cases

INDEX

ABOUT THE AUTHOR

Walter R. Simpson has been litigating personal injury cases, representing both plaintiffs and defendants, since his graduation from the University of Missouri at Kansas City Law School in 1967. He has tried more than 200 jury trials and has been a frequent speaker at CLE Seminars. In 1974, Mr. Simpson was recognized by the Missouri Bar Foundation as the outstanding young trial
lawyer in the Greater Kansas City Metropolitan area and was presented with the Lon O. Hocker Trial Lawyer Award. In 2001, the Kansas City Metropolitan Bar Association presented Mr. Simpson with the Dean of the Trial Bar Award, in recognition of 34 years as an outstanding litigator.

Mr. Simpson has served as President of the Kansas City Metropolitan Bar Association and President of the Kansas City Metropolitan Bar Foundation. He is currently a member of the Board of Governors of the Missouri Bar Association. He has been included in The Best Lawyers in America, published by Woodward/White, Inc., continuously since 1997, and has held a Martindale-Hubbell Peer Review Rating of AV, the highest possible rating for Legal Ability & Ethical Standards, for 30 years.