(Editor’s Note: Litigation is published by The Journal of The Section of Litigation, American Bar Association. This volume was subtitled “Surprises.”)
Bullfighters and boxers are sissies compared with trial lawyers who have cross-examined with no depositions or documents to impeach the witness.
There are no picadores to soften up the prey. No one rings a bell every three minutes for a rest. It’s just the lawyer mano a’ mano with the witness, appearing for all the world unfazed by the devastating testimony he had just heard, fully aware that his brain is sliding out his ear.
It is easy to control a witness who has made a prior inconsistent statement. When you have no such ammunition, “crossing in the blind” becomes a profoundly psychological struggle, pitting the litigator’s skills against the witness’s capacity for ruinous, unresponsive answers.
Blind cross is a peril of all adversarial proceedings. Criminal lawyers cross-examine with virtually no meaningful pretrial discovery. Civil lawyers face rebuttal witnesses about whom they know next to nothing and cross-examine over areas not covered in depositions. Witnesses in administrative hearings often run wild because the rules of evidence are relaxed. Injunctive relief requires us to question without adequate preparation. The list goes on and on.
Successful litigators control virtually every witness they face. Otherwise, they become hostages of the courtroom and its capacity for surprise.
There are, happily, methods for mastering blind cross, but to suggest there are bright lines is presumptuous. The minute you think you’ve got it, the gods woodshed a witness, who then makes you look like an idiot. The gods think its funny and repeat the exercise again and again.
These examples, re-created from criminal and civil cases, illustrate how to control witnesses by 1) silence and gestures, 2) impeaching the “whole person,” 3) testifying, as we say in Texas, “your own self,” and 4) asking potentially catastrophic questions for the sole reason that opposing counsel should have asked them, but did not. My suggestions apply to all cross-examination, but especially to blind cross, where there is no documentary or testamentary evidence to wave in a recalcitrant witness’s face.
The worst thing about blind cross is that it often follows unanticipated testimony that can leave your mind reeling, incapable of absorbing what the witness said. If you are a serious trial lawyer, you have lost your train of thought or even panicked at least once in the wake of this kind of testimony.
Joe DiMaggio, Willie Mays, and other great hitters had what psychologists call “calm minds.” They waited until the ball was right on top of them to decide if they should swing. They could read the seams.
A calm mind is as important to lawyers as to ball players, particularly in blind cross. To read the seams is to hear the words, and there is no way to do that without achieving DiMaggio-like concentration.
This presupposes a world of trial experience. By cross-examining dozens of witnesses, we become more relaxed, capable of launching a successful attack no matter how destructive the testimony. Therefore, effective blind cross presumes two things: that the lawyer has tried a lot of cases and that the lawyer is real old. In trial lawyer years, real old is somewhere around 35.
There is no way to emphasize enough the importance of listening carefully to the testimony. That is especially true for rookie lawyers. The reason is simple. The first thing we have to decide is whether to cross-examine at all.
WHEN NOT TO CROSS-EXAMINE
Sometimes adverse witnesses say nothing harmful; occasionally they say something helpful. If we are too flustered or too busy conferring with co-counsel to hear all the testimony, we may miss an opportunity simply to pass the witness.
The problem is trial lawyers have railroad tracks for brains. Once we get the idea that we are going to cross-examine, well, by God, no matter where the engine takes us, even over the side of the mountain, that’s what we are going to do. Such examination is often unavailing and frequently hurts the case.
You may ask how I can be so certain. Well, I’ll tell you how. It happened to a friend. I was out of town at the time.
During a RICO case, the prosecutor decided to put on a rebuttal witness who had been the defendant’s bookkeeper 25 years before. Her testimony was admissible — trust me — because the RICO Act only pretends to have a statue of limitations; it doesn’t really have one.
The only thing is the defense lawyer knew about the witness was what the client remembered: The woman had sustained a serious hearing loss in childhood. At lunch, the lawyer spotted the witness and twice shouted her name loudly. She didn’t even flicker. The lawyer, onrushing locomotive now in motion, couldn’t wait to demonstrate the hearing problem to the jury.
According to the prosecutor, the witness was to have testified that the defendant had said those long years ago: “Don’t let anyone know we sold all those [machine] parts. The customer paid in cash and I don’t want to pay taxes.” She was going to be a killer.
However, once on the stand, her testimony was almost the opposite. Old and confused, she testifies that the defendant said, “Don’t let anyone know about the delivery. We have to pay our taxes.” At best, the testimony was helpful. Mostly it was incomprehensible.
Had he not been in contemplation of the witness’s inner ear, defense counsel would have observed the prosecutor slumping into his chair, astonished at the harm he’d done to his case. Instead, without hesitation or the undue burden of thought, he sauntered to the podium and tore into the witness:
Q: You have stated that my client said he wasn’t [sic] going to pay taxes. It is a fact that this conversation took place over twenty-five years ago, in a noisy machine shop, isn’t it? [The question was accompanied by a kind of strut.]
Q: And isn’t it true that you sustained a serious hearing loss when you were a child?
Q: You can’t hear very well, can you?
A: No, sir, I can not [sic]. But I damn sure remember what your client said. He said he wasn’t going to pay taxes. And he made certain that I heard him when he said it. I was the bookkeeper.
Ah, sweet mystery of cross-examination. The only testimony in the entire case that harmed the defendant was elicited by his own lawyer. Blind cross does that to us. Had the testimony not come as a surprise, had his mind been calm, counsel would have heard what was actually being said and passed the witness.
Reading that transcript today, I have nothing but empathy for my colleague, and, if I have not already done so, I would like to emphasize that I was not in town when this happened. (It might be of some interest that the client was acquitted, despite his lawyer.)
In blind cross, as in all cross-examination, the object is to get the answer you want and not one word more. That means asking questions that can be answered only “yes,” “no,” or “I don’t know” most of the time.
It also means quickly establishing psychological domination over the witness. But where does it come from, the ability to control cross when you have no bullets in your briefcase and no idea what the witness is going to say? Without over paraphrasing Chariots of Fire, it really does come from within.
If we use everything in our command, and not just words, we can impeach virtually every adverse witness we face or at least minimize the damage. For example, the instant an answer becomes unresponsive, I like to rise both hands, palms towards the witness, and glare wordlessly at him. Almost invariably, he will stop talking. More important, he will be reluctant to try it again. Because the gesture is humiliating — like being silenced by a teacher in front of the class — you should use this kind of tactic only if the answer is genuinely unresponsive. Otherwise, you risk creating jury sympathy. Incidentally, controlling the witness with battery-operated devices is considered somewhat extreme even in Texas, where cattle prods are a way of life.
If the witness continues to be unresponsive, object. Make a jury speech pointing out how the witness responded directly to opposing counsel but would not answer your simplest question. In the best of all worlds, the judge will get angry at the witness, and the jury will follow suit. In a case where you have little else going for you, that may make all the difference.
Witnesses often answer, “I can’t recall” or “I don’t know,” when such an answer is not really credible. However, with nothing to use to impeach, lawyers sometimes abandon the attack, implying to the jury that the answer is truthful when it is not.
That kind of timidity can prove fatal. One potentially brutal tactic for refuting a convenient loss of memory (or any lie) is to cross-examine the whole person. This means contrasting the life the witness has led with the dubious answer. The opportunity presents itself in virtually every case.
In a recent federal prosecution for fraud, the witness testified that he had executed only one of four investor notes that my client, a real estate promoter, had pledged at a bank. He claimed the signatures on the other three were forged. If that testimony was believed, then the only possible culprit was my client or her son. (The FBI had not analyzed the signatures, a fertile area for closing argument, but unrelated to this discussion). Again, the witness had given no prior written statement or deposition.
I began by cautiously developing his educational and work history. In 1965, he had earned an MBA. For the past decade he had been CEO and majority stockholder of a real estate company once valued at $11 million, but now in bankruptcy.
I asked if he had entered into other real estate partnerships and he said he had. He also acknowledged doing several oil and gas deals. Each of them required that he sign one or more promissory notes. The more I asked about those transactions, the more reluctant he was to discuss them. I left that area but returned as gently as possible by asking him if he had ever been sued, “as is common in business these days.” He stated that he had been, several times. One of the suits, on a promissory note, was settled two years ago.
I asked if that note was for $100,000 and he said he didn’t remember. I asked if the note was for $1 million, and he still couldn’t remember. I asked whether he settled the suit for $10,000 or $100,00 or $1 million. He said he couldn’t remember.
I then asked if someone had advised him to keep saying he couldn’t remember to avoid being indicted for perjury. This seemed to get the attention of the prosecutor, who objected somewhere near the threshold of pain. I then paused for a long moment and stared incredulously at the witness. Silence can be very powerful.
Q: Let me understand. I just asked you — a man whose education includes a masters in business administration, who spent his adult lifetime building a real estate business once valued at millions, a business that depends upon precise documentation such as mortgages and deeds — I asked you how much you settled for just two years ago, and your answer is “I don’t remember if it was ten thousand or a hundred thousand or a million dollars.” Is that correct?
Even before I asked the question, it was clear he was lying. No one forgets facts as significant as these and certainly not a sophisticated businessman. By underscoring the precision required in the real estate business — his life’s work — compared with the imprecision of his answers, I virtually destroyed his credibility.
Now, I needed a different tactic to link his lies to the case at hand — some witness or document to show that my client hadn’t forged those notes. Unfortunately, there was nothing helpful in the files of the civil suits against the witness, because the suits had either been swallowed up in the bankruptcy or settled quickly. So I turned to the one witness I could trust: me. I did a little testifying my own self.
Q: Let’s leave the issue of how much you paid to settle the suit for a minute. Your excuse [not defense, but excuse] in that lawsuit for not paying what you owed was that you hadn’t signed that note, either. That’s true, isn’t it?
A: I don’t recall.
Q: Well, did you sign that note or not?
A: I said I don’t recall.
Q: No. You said you couldn’t recall if you used that as an excuse in your lawsuit. Do you want this jury to believe you can’t recall if you signed the note?
A: I don’t care what they believe. I don’t recall.
Q: And how many notes did you beat when you filed your bankruptcy?
A: I didn’t beat any.
Q: Oh, I see. You object to my use of the word “beat.” [The jury was laughing.] How many notes, then, did you extinguish by your bankruptcy?
A: I don’t remember.
Q: Well, of course you don’t remember. That was the at least a month ago. Let me direct your attention to the four notes in this case. You claim you signed only one of them, true?
A: That’s right.
Q: Let me ask you this. Is there the slightest chance that you actually signed all four of these notes and now deny you signature just to get out of paying them?
A: I pay my debts.
Q: And that you really don’t care if my client is convicted of bank fraud as long as you can beat another debt?
A: I don’t really care what happens to her. I don’t owe that money.
Chicken salad, ladies and gentlemen. Chicken salad.
It is amazing how often the opportunity presents itself to cross-examine the whole person. A recent issue of The New York Times, for example, ran an excerpt from the testimony of Ivan Boesky, in the Mulherin trial. He testified that he couldn’t remember without a financial statement what his net worth was within $100 million to $200 million. It wasn’t included in the article, but you can imagine the cross of good lawyer Thomas Puccio, reminding the jury of Boesky’s self-proclaimed financial wizardry.
A potentially lethal problem of blind cross is that litigants can treat a trial the way politicians treat televised debates: touching your questions a glancing blow and turning their answers into press releases.
In a legal malpractice case I helped try recently, I managed to conduct two cross-examinations of a single runaway witness. The first, which lasted until the evening recess, was the worst cross-examination in the history of Western Civilization — a conclusion shared by everyone in the courtroom except, unbelievably, the jury. The second, conducted after I lay awake all night wondering if it was too late to get into pipe fitting, was brutal. Everyone agreed the witness had been destroyed.
The facts were complex. Our clients, homebuilders, sued their former law firm. They alleged that the lawyers had failed to give them securities law advice on a complicated real estate transaction, called a shared mortgage program, which the firm had been retained to review.
CASE OF THE RUNAWAY WITNESS
When the real estate market turned sour a few years after the transaction was closed, the investors sued the homebuilders. They alleged our clients should be deemed dealers or promoters of the investment program under securities law, and that, as dealers, they had violated their duty to disclose all material facts.
Their complaint was that the homebuilders did not reveal that they were sharing their real estate commissions with the man who had originated the program, or that he even existed. Worse, they had failed to disclose that the man backed out of active participation in the deal because of what he told the clients were some “legal problems” — and that two years after the closing those problems turned into a conviction for securities fraud in an unrelated transaction.
When the law firm advised them to settle with the investors, the clients were outraged and horrified by the allegations against them. They had never been advised that there were any securities implications in their end of the deal, much less that they could be deemed promoters with a duty of disclosure. Ironically, they had turned down the opportunity to promote the deal when the originator backed out, consciously restricting their role to providing houses — inventory — to the program.
They settled the investor suit and immediately sued their lawyers for actual and punitive damages.
Because securities law is so complex, we tried to reduce the case to a single sentence with a cutting edge easily conveyed to the jury. This meant proving over and over that the clients had obvious securities exposure that the lawyers simply missed and later, having discovered their error, covered up.
The witness I confronted was a senior partner, a securities specialist the clients had turned to after the program’s originator was convicted. One of the clients had asked him in writing if they were breaking “any laws” by continuing to pay the originator his share of real estate commissions.
The lawyer’s testimony presented a perfect opportunity to develop just how obvious the clients’ risk under securities law had been — especially when they tried to shore up the disastrous deal by providing financing to investors. I have recreated the testimony to the best of my memory, exaggerating a bit to make the point that either the lawyer was being evasive or, charitably, I was being dense, or both:
Q: The shared mortgage program was begun in 1983, was it not? And you learned in February 1984, the clients started loaning money to investors to finance the purchases of the homes.
A: Yes, I found that out later on.
Q: At the time you found out, didn’t it concern you that the clients had violated securities laws by loaning money directly to the investors?
A: Securities laws are pretty complex. Unless the client was deemed a promoter, I cannot say that there was any reason to conclude they had violated securities laws.
Q: You knew they had shared commissions with a man later convicted of securities fraud?
A: Yes, the clients told me.
Q: And they asked you if they should continue their commission payments to him?
A: Yes. And I told them they could. It’s simple contract law that if the contract was legal, then the obligation remains. The fact that the man had gone to jail was irrelevant.
Q: But the clients asked you, according to your testimony, if they were violating any laws by continuing the payments, didn’t they?
A: Here’s my point. [His point? If I had murdered him on the spot I would have been acquitted. Instead, I smiled like one of those contestants in the Miss Teen America contest and let him ramble on.] We knew only what the clients told us, nothing more, so I believe our advice to continue paying the commissions despite the conviction in the criminal case was basic contract law.
Q: Shouldn’t the clients have been sent a rescission letter at this point — a letter to investors stating that a mistake had been made offering to return the money?
A: There would be nothing to rescind unless they were the promoters of the deal, would there? Unless, of course, they had done something wrong they hadn’t told us about. And can you imagine talking them into refunding all that money they had earned?
Here was a classic example of the witness taking charge; more accurately, stomping the lawyer like a vat of Italian grapes. This is something else blind cross does for you: It gives you the opportunity to make a complete fool of yourself in the presence of your colleagues and to have it memorialized in a transcript so that, in the unlikely event the memory of the disaster ever subsides, someone can remind you of it.
Oddly enough, I sensed the jury was getting mad at the witness. It never occurred to me that he was evading the questions, only that I was not in control. The next morning I started over again. This time, I actually thought about what I was doing:
Q: You admitted yesterday that after the silent partner was convicted of securities fraud, the clients asked you this question: “Are we violating any laws by continuing the payments to him?”
A: Yes, I did.
Q: Even in the light of his conviction, you gave them no advice regarding securities laws?
A: I told them, and this is basic textbook law, that they weren’t violating any contract law by continuing to make the payments to a man convicted of a crime.
Q: Now listen to my question. After they informed you the man had been convicted of a felony, it is a fact, is it not, that you gave them no securities law advice?
Q: And the question they asked you was whether they were violating any laws by continuing the payments?
Q: You never advised them to write a letter to investors disclosing everything about the commission split or about his criminal conviction, did you?
A: No. They didn’t ask for securities advice.
Q: These clients paid your firm $2 million in legal fees over the years and you…
Opposing counsel: Objection, Your Honor. Now it’s $2 million. Earlier Mr. Berg said it was a million eight.
Response: Well, what’s a couple hundred thousand among friends, Your Honor?
The court: That’s enough. Ask the question again.
Q: Your firm began representation in this matter in late ‘83?
Q: And in 1984, with your firm’s knowledge, these clients began financing the investor notes?
A: Yes. I told you that yesterday.
Q: That meant the clients made it possible for investors to get into the deal, made it possible for them to share a mortgage on a home, made it possible for them to buy homes from the client, didn’t it?
Q: And therefore that loan of money to the investors subjected the clients to the risk that they would be deemed to be dealers under securities law?
A: Well, it certainly moved them closer to the position of the dealer.
Q: You never told the clients that they had moved closer to being considered dealers, did you?
A: Well, they weren’t asking about that.
Q: Perhaps it was the way I asked my question. The answer is that you never advised the clients they had moved closer to being considered dealers under securities law, did you?
Q: The fact that they could be deemed to be dealers or promoters under securities law, that meant they had certain obligations to the investors, didn’t it?
A: If they were dealers, yes.
Q: And if they were deemed to be dealers, wouldn’t they have an obligation to tell the investors all about the commission-sharing arrangement? And about his conviction?
A: That would depend.
Q: Sure. It would depend on whether they wanted to get sued, wouldn’t it? When they asked you if they were breaking any laws by continuing the payments, the answer should have been, “You better disclose everything to those investors or you will be breaking securities laws,” shouldn’t it?
A: I don’t understand the question. Could I have some water? I’ve got a cold.
Q: You admit you never told them to send a letter to the investors, disclosing their deal to split the commissions, did you?
A: I gave them no securities advice.
Q: In fact, the reason your firm advised them to settle the lawsuit is because the investors were absolutely correct — the clients could be deemed to be dealers?
A: Yes. That was a consideration.
Q: Only a consideration? That the clients could lose the lawsuit because some court could say they had been acting as dealers?
A: It was an important consideration.
Q: You knew at the time they were providing funding to investors that it was going on?
A: I did know.
Q: In fact, your partner reviewed the funding and approved it, didn’t he?
A: He discussed the matter with the clients.
Q: And if you ever got around to telling your clients they had securities exposure because they provided that funding, you would also have to explain why your partner let them proceed with it, wouldn’t you?
Now it was clear. He could have warned the homebuilders of their peril, but didn’t. To do so would have revealed the firm’s negligence. As one of the jurors later remarked to a reporter, “They really left the clients out to dry.” At the end of seven weeks of trial, the jury assessed actual and punitive damages of more that $17 million.
Another example from that trial illustrates the beauty of cross-examining the whole person. It was undisputed that the lawyer initially retained by the clients, a brilliant young man, failed to read the private placement memorandum that described the shared mortgage program to investors.
Under questioning by co-counsel, the lawyer stated he hadn’t read it because it wasn’t “important” to his review of the real estate aspects of the deal. My colleague was genuinely angered by the response. After referring to the fact that the clients were sued primarily because they were mentioned in that document, he asked:
Q: Now, I know you were number one in your law school class and that you are obviously very smart, but how can you tell if a document is unimportant, when you haven’t read it?
It was one of those unforgettable moments in a trial when a simple question sounds like an eloquent closing argument — all done without the benefit of a document or a deposition.
There is one other tactic of blind cross that you should consider, but not if you have undergone recent bypass surgery. If opposing counsel’s own witness is not asked a question that is clearly central to proving their case, then you ask it. There can be only two reasons for the omission. The lawyer either knows the answer and doesn’t like it or has spring-loaded the witness to kill you if you are dumb enough to ask.
In 1989, I represented a bank president who agreed to loan $2 million to three employees of Mr. X, knowing they would in turn loan the money to Mr. X so he could cover his $2 million overdraft at the bank. As he appeared, from the seven-figure overdraft to be in some financial distress, Mr. X could not borrow the money himself.
There was only one way the bank president could be convicted: if it appeared he has assured the employees that he was not really looking to them to repay the $2 million they had borrowed, but only to Mr. X. That would be a misapplication of bank funds.
One of the employee-borrowers agreed to testify for the government in exchange for a guilty plea to one count. On direct examination, she testified about a meeting where she, the banker, and Mr. X had agreed about the loans and how they would be used to cover the overdraft. The prosecutor never asked her the pivotal question: Did the banker assure her that he was looking to her boss and not to her for repayment? On cross I developed the following:
Q: It was your belief that Mr. X was going to pay back those loans, was it not?
A: Yes, sir.
Q: And in all your conversations prior to trial with the FBI and the prosecutor, you never said anyone from the bank, including my client, told you that you wouldn’t have to repay your loan, did you?
A: No, I didn’t.
Q: And you didn’t say that today when the prosecutor was asking the questions?
A: That’s right.
Q: How many times did you meet with the FBI prior to giving your testimony today?
A: Seven or eight.
Q: How long would you say you met with them in all?
A: At least ten hours.
I now had 75 percent of what I needed. She admitted that during all those hours with the FBI, she had neither accused my client of making the forbidden representation about repayment, nor had she done so during her testimony. To prevail on a motion for judgment of acquittal, I needed her to admit that the client never said that if Mr. X didn’t pay, she would not have to, either. Otherwise, the case would go to the jury.
I felt confident asking the crucial question. My client had assured me that he had never made such a representation, and I believed him. He was not only an exceptional banker — every penny of the $2 million was paid back on time — he looked exactly like James Garner, which, I guess, has little to do with this anecdote, but, for Maverick fans, bears mention.
More important, I asked the question because the prosecutor should have, but did not.
Q: In fact, my client never said to you that if Mr. X didn’t pay you back, don’t worry, you don’t have to pay off those loans, did he?
A: No, sir.
Q: And, in fact, no one at the bank ever said anything like that to you, did they? [I was doing victory laps.]
A: No, sir.
The judge granted my motion for judgment of acquittal. The only conviction in that trial was of the cooperating witness, who pled guilty under the terms of her agreement.
Despite my good luck in this case, I believe blind cross is something we should have less of. It is the enemy of effective cross-examination, especially in criminal cases, where pathetically little pretrial discovery is allowed.
As a criminal lawyer who has tried some serious civil cases, I find the disparity in discovery between the two areas increasingly irreconcilable. The most striking restriction is in Rule 15 of the Federal Rules of Criminal Procedure, which is also the rule in most states. It prohibits depositions in criminal cases except under exceptional circumstances, like the imminent revelation of the meaning of life.
As if that advantage to the government were not enough, Assistant United States Attorneys increasingly refuse to turn over the 302s, which are typewritten summaries of witness interviews by FBI agents, usually the closest thing to a prior statement in a federal prosecution.
Because the 302 is created by the agent, it is not discoverable unless it is used to refresh the witness’s memory or unless the witness ratifies its contents in some way. All the prosecutor has to do to keep the document away from the defense is to keep it away from the witness. And prosecutors do it, within the rules, all the time.
Of course, the defense could simply call the FBI agent to the stand to testify about the witness interview — always a terrific move for a defendant in need of a pal.
There is another way to get the 302. Under the holding in the Brady case, the defense can request that the court conduct an in camera review to see if the 302 contains exculpatory material, which must be turned over to the defense. It is my position that almost any prior inconsistent statement is Brady material in that it tends to show the witness is not telling the truth about the defendant and/or is generally unworthy of belief. Judges generally take a narrower view on this subject than we defense lawyers. What we usually get is a liberally redacted document that looks as if it has been dipped in road tar. Often we get nothing at all.
No matter how talented criminal lawyers believe they are at cross-examining, they could be better if the rules of discovery were expanded. When a civil lawyer wants testimony, depositions are set, testimony is developed, and documents are turned over. There is no begging — as in criminal law — for evidence that should be produced as a matter of right.
The defense bar ought to seek changes in Rule 15 so that a defense lawyer can take depositions and serve subpoenas duces tecum. Under the rules of reciprocal discovery, this will mean that the defense has to produce witnesses for questioning, with the obvious exception of the defendant. The result would be improved cross-examination, fewer trials, and, ultimately, an increase in acquittals.
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