Cross-examination is the first of the Essential Skills that a Litigator must be excellent at to accomplish his Mission. To conduct a proper Cross, a Litigator must understand the Burden Of Proof (BOP) and be able to use it to his advantage.
The BOP is the procedural obligation to demonstrate the existence of the facts that entitle a Party to a favorable answer on an Issue
There are two BOPs: production and persuasion. To understand the difference between them we must first be able to discern between (little “f”) facts and (big “F”) Facts* and see how both are related to Claims/Defenses, elements and Issues.
Recall that a Claim is a legal demand for Judgment placed before the Court and a Defense is a legal defense to a Claim that the proffering party must affirmatively prove. Claims and Defenses are both comprised of Issues, which are the disputed sub-components that the jury must resolve to reach a verdict. Issues, in turn, are broken into certain determinative requirements called Elements, which the Party with the BOP must establish with Facts. A fact is any occurrence that is known or proven to be true, while Facts are only those facts that bear directly on an Element. The jury will hear and see a lot of facts during a trial, but it is only the Facts that truly matter—and there will be far fewer of those.
For example, take the Claim of breach of contract, for which the plaintiff has the BOP. Within that Claim there are three Issues for the jury to resolve:
1. Formation—did the contract exist?
2. Breach—did the defendant fail to perform a material obligation of the contract without justification?
3. Damages—did the defendant’s breach cause the plaintiff economic harm?
One of the Elements within the Issue of formation is whether the Parties mutually agreed to the same material terms. A Fact that bears directly on that Element would be that one of the Parties made an offer. What that Party might have been wearing at the time the offer was made is only a fact which (whether interesting or not) does not bear directly on the Element.
The burden of Production is the requirement to elicit Facts sufficient to establish the Elements of each Issue of a Claim or Defense
The ultimate convincing force of those Facts is not relevant as long as there is a scintilla of evidence in support of each Element. If there isn’t, the Party with the burden of Production will not survive his OC’s motion for DV (Directed Verdict)** and the judge will not present the Claim or Defense to the jury.
The burden of Persuasion is the requirement to convince the Jury that the greater weight of the evidence makes a Fact in dispute more likely to be true
Here, unlike with Production, the force of the Facts elicited by the Party with the BOP does matter. Although he may have produced enough evidence to survive DV (all it takes is a scintilla), that does not necessarily mean that a Litigator will be able to persuade the jury to return a verdict in his CL's (client) favor.
With respect to the BOP, the Court acts like a gatekeeper, applying the standard of Production to a Claim or Defense to determine whether the Party that bears the BOP may pass its Claim or Defense through to the jury. Once inside that gate, the jury then applies the standard of Persuasion to determine the truth of the Facts the Litigator has presented during his Case***.
A Litigator with the BOP on an Issue must present a Case to support it—otherwise, he can neither meet his burden of Production to the Court nor his burden of Persuasion to the jury
His OC (opposing counsel) may also put on a Case for the purpose of convincing the jury that the burden of Persuasion has not been met. However, he is not required to do so. The Litigator without the BOP may decline to put on a Case and instead rely on Cross to erode the jury’s confidence in the evidence presented by his OC and dissuade the jury solely through Doubt Casting, which is the blunting of the effect of a Hostile’s testimony about the Facts and Issues through impeachment.
Doubt Casting is one of the Litigator’s prime directives on Cross. The other is Evidence Gathering, which is the act of eliciting testimony on Cross from a Hostile to prove the matter asserted rather than impeach the witness.
Doubt Casting and Evidence Gathering are very different aspects within the skill of Cross, which is one of the reasons that it so difficult to master.
________________________________________ * A Fact is an occurrence that bears directly on an Element. ** DV is JML granted during Trial at the close of the evidence offered by a Party in its Case on the grounds that the burden of Production on a Claim has not been met. ***A Case is an evidentiary presentation by a Litigator during Trial in support of (or in opposition to) a Claim or Defense.