An excellent Cross is focused tightly on the Facts in dispute
A Fact is an occurrence that bears on an Element that must be decided to resolve the overall controversy—otherwise, it is not a Fact because it is not Material[1]. Unless he is Diminishing the witness, the Litigator should not waste time probing the non-Material aspects of a Hostile’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[2] a witness on non-Material 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.
In retrospect, I recognize most of these testimonial misstatements as the result of nervousness, 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 even though it’s a non-Fact.
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 Doubt Casting. Ultimately, the jury only cares about the Facts that apply to the law the judge gives them—everything else is a waste of their time.
As a Novice, my lack of discipline on Cross was further exacerbated by the absence of a firm understanding of the Material versus the immaterial.
The reason for this was that I never started thinking about the Instructions until the judge told me to do so. This usually occurred on the second or third day of Trial when the judge realized that the plaintiff had met his burden of Production and was likely to survive DV on at least one of his Claims. Not wanting to waste the jury’s time as the lawyers floundered around trying to prepare the Instructions after the close of evidence, the judge would start asking the lawyers if they had “given any thought” to the Instructions.
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[3]. At most, I might think about preparing them, but that wasn’t good enough because only by actually preparing them would I know what was Material to the Claims and Defenses in the case.
Because I didn’t prepare the Instructions before the Trial started, my Crosses could not possibly conform tightly to the Issues and Elements as I hadn’t yet identified them. Instead, they were scattershot attempts to dispute the testimony of the Hostiles on every fact, rather than on just the Facts, which meant that every Cross I conducted was both too long and unfocused.
Inevitably, it would be during my belated and exhausted rush to prepare the Instructions before the Charge Conference that it would become clear to me how ineffective my Crosses had been because they were not linked to the Instructions. Instead of my Close being a smooth extension of my Crosses, I would have to monkey wrench the evidence the jurors had heard into the law upon which the judge would instruct them.
Only after my tenth Trial (or so) did the ineffectiveness of this approach drive me to begin preparing my Instructions prior to the call of the first witness
By doing so, I was able to conform my Crosses to the Instructions because I already knew what the Issues and Elements were. This greatly improved the quality of both my Crosses and my Closes.
Eventually (after about ten more Trials), I discovered that 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 AP’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 Instructions.
Now, having learned to Start with the Instructions, when I am the plaintiff I prepare my Instructions no later than just after my receipt of the defendant’s answer.[4] That way, I am forced to evaluate the possible Instructions related to the defendant’s Defenses and Counterclaim[5] (if there is one), as well as my own Defenses in my reply to the Counterclaim.
When I am the defendant, I prepare the Instructions no later than just after the plaintiff’s reply to my Counterclaim so that I can evaluate my OC’s Defenses.
By evaluating the ultimate law the judge will give the jury on all of the Parties’ Claims, and Defenses I am able to draft my discovery requests toward obtaining the evidence I will need to satisfy my BOP and defeat that of my OC. 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 contractual Defense of failure to mitigate damages, I propound an interrogatory asking him to identify every instance in which my CL neglected to use ordinary care to avoid the harm he sustained as a result of the defendant’s (alleged) breach of contract. This question is drawn from North Carolina’s pattern jury instructions and represents one of the Elements for which the defendant has the BOP 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 failure to mitigate is a boilerplate Defense that came from his lawyer) I say, “well, if you ever so 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.
Later, at Trial, when my OC suddenly remembers his mitigation 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 (which he usually will), 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 deposition 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. [6] If he says “no, I guess it’s not fair”, that’s great. If he says “yes it’s fair”, or more likely that he doesn’t know either way, I argue to the jury during Close that the witness has an unreliable concept of fairness. What’s actually best for me is if he just sits there dumbfounded for a few seconds. The jury will get 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 to prepare the Instructions if I am ultimately going to effectively Cross to Close. Because I prepare the 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 BOP and defeat my OC’s effort to meet his.
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[1] Material evidence is that which has some logical connection with the consequential Facts or Issues. [2] Impeachment is contradicting a Hostile’s direct testimony during Cross. [3] The Charge Conference is a Trial hearing during which the Court hears the Parties’ arguments and objections to the Instructions and verdict sheet. [4] Generally, I do it even before receiving the answer by anticipating the Defenses my OC will plead. This topic will be more fully explored in the third pillar (Critical Path). [5] A Counterclaim is a Claim made by a defendant in his answer. [6] The Third Principle Of Cross is Always be leading.