Posted On: May 23, 2011

Advice for brushing up on your cross-examination skills

Which part of a trial is the most important? Lawyers may never agree on an answer to this question, but no lawyer would dispute the significant role cross-examination plays in proving one’s case before a judge or jury. My forthcoming book: Anatomy of a Trial: A Handbook for Young Lawyers, analyses cross-examination as one of several vital phases of a successful trial. Still, a number of excellent books present a full-court press on cross-examination and they should be on any young trial lawyer’s reading list.

One of the most valuable is Cross-Examination Handbook: Persuasion, Strategies, and Techniques, by Ronald H. Clark, George R. Deckle, Sr. and William S Bailey (Wolters Kluwer 2011). This book has it all, and I rank it as one of the best books on cross-examination in recent times. The subject matter is thoroughly covered, and the authors provide wonderful examples -- and checklists. Examples come from some of the most historic trials of the past one hundred years, such as Clarence Darrow’s famous cross of William Jennings Bryan in the Scopes Trial of the 1920s, and the cross of Senator Ted Stevens in his own trial three years ago. Chapters include constructing the cross, impeachment, and the ethical and legal boundaries of cross-examination.

Terence F. MacCarthy’s MacCarthy on Cross Examination (ABA 2007) is also a must-read for anyone seeking to improve his or her cross-examination skills. Mr. MacCarthy is the Public Defender Emeritus of U.S. District Court for the Northern District of Illinois. He is a masterful trial lawyer, teacher and writer. According to MacCarthy, a cardinal rule on cross is to control the witness with short statements in question form, all calling for a “yes” answer. Terry MacCarthy has taught scores of lawyers to succeed on cross using his methods.

Another helpful compilation is Steven F. Molo and James R. Figliulo’s Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers (Law Bulletin Publishing Company 2008). This book presents views of fifty esteemed lawyers on the art of cross-examination.

Finally, those lawyers who are truly committed to mastering cross should read The Art of Cross Examination, by Francis Wellman. Originally published in 1905, it is still in print. Wellman presents selections from some of the great cross-examinations of yesteryear, “whose extended experience makes them safe guides to follow.” With experts including Joseph Choate, Charles Russell, Abraham Lincoln and others, the book is a joy to read and a timeless and insightful guide to the fine art of cross-examination.

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Posted On: May 19, 2011

Galleon case tests the limits of jury research

The Wall Street Journal continues its postmortem of the Raj Rajaratnam trial in an article that offers insight into the potentials and the limits of jury research. The story reports that the jury consultants hired by Rajaratnam picked the jury they wanted--one that was skeptical of the government's case and sympathetic to the defendant.

A mock trial conducted in advance of the real trial told consultants that the defense counsel's case played best with "those without advanced-education degrees or financial sophistication and with relatively low- to middle-income jobs. Mock jurors who were members of the ethnic minority groups also were more sympathetic to Mr. Rajaratnam," the story reads. That description matched the jury that ultimately convicted the defendant, however, suggesting that jury research only gets you so far against a strong adversary.

That said, such reports shouldn't be taken as evidence against the value of mock trials and consultants. In some cases, they are essential to success. Given the comments of jurors after the trial, it would seem the defense had as good a jury as could be expected.

Had the government's case been a bit weaker, we could be talking about a surprise acquittal. In the end, the most one can do is position one's client as advantageously as possible relative to the evidence in question. Good, credible jury research generally advances that goal.

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Posted On: May 16, 2011

Lessons from the Rajaratnam Jury Room

Judge Richard Holwell asked jurors not to discuss the trial of Raj Rajaratnam, but a few clever Wall Street Journal reporters managed to report this weekend about what went on during the 12 days of deliberations before the jurors delivered their guilty verdict.

For trial lawyers, any reading that offers a glimpse of the thinking and behavior of jurors can be helpful. The WSJ report surely isn't the whole story; it relies mostly on one juror's comments. Still, it confirms a few valuable lessons about trial advocacy.

In talking about the Rajaratnam's defense, the juror in the piece doesn't zero in on the substance of the argument. Rather, she emphasizes a weakness in the delivery. The attorney's voice, in particular, the jurors reportedly thought, was "monotone" and "tired." A problem like that has nothing to do with the facts in question or the law, but it does matter. How we speak colors what people hear. It determines more, perhaps, than our diction, although that, too, is critical.

The other lesson here I take as an encouraging one. The article states that the jurors believed from the beginning of deliberations that Rajaratnam was guilty, but they wanted to deliberate carefully. The juror who went on the record with the reporters said that the jurors "tried to poke holes in the government's case and wanted to like Mr. Rajaratnam[.]" They even "challenged each other, trying ot take the defendant's view to make sure they weren't blindly accepting the government's version."

In other words, the minds of the jurors were open to persuasion. The relatively superficial matter of the attorneys' delivery did not trump substance in the end. That's the sort of jury a defense attorney needs to prevail. Unfortunately for the defense counsel in this case, the fair-mindedness of jurors wasn't enough.

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Posted On: May 7, 2011

Litigation Institute for Trial Training: A boot camp for young lawyers

Last month, the ABA’s Litigation and Criminal Justice Sections jointly conducted the fourth annual Litigation Institute for Trial Training program, or LITT -- also known as a boot camp for young lawyers. I created the LITT program to help young lawyers hone their advocacy skills in a one or two-day intensive training session that covers all aspects of trial preparation and proceedings, and courtroom protocol.

Nearly a hundred young lawyers attended this year’s LITT program in Miami Beach, Florida. The one-day program started at 8:00 am and adjourned at 4:45 pm with hardly a break. Box lunches were served as Judge Marvin J. Garbis, of the United States District Court for the District of Maryland, presented a lecture on what young lawyers should know when trying cases. The schedule followed with an array of esteemed attorneys and jurists serving as panelists – demonstrating and leadings discussions involving all components of a trial, including case analysis and courtroom conduct, opening statements, cross examination and closing arguments.

The two-day LITT program, which has been conducted in previous years, follows a similar format. But the two-day version also includes workshops at which young lawyers divide into groups of eight to demonstrate opening statements, direct and cross examination; and closing argument. A faculty of three presides over each of five classrooms.

While up to a hundred students may register for the one-day LITT program, registration for the two-day program is limited to forty students. Next year’s program is already in the works. If you are interested in details or for more information about LITT, please contact me at

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