The Fearless Cross-Examiner

Breaking Tradition

April 6, 2017

By Charles W. Day
Originally published in the February 2017 issue of Trial.

A great sculptor must be an artist, not a mere stonecutter. And a great trial lawyer must be a storyteller, not a mere inquisitor. The traditional view of cross-examination is that attorneys should limit themselves to leading questions to expose contradictions—and then wait until closing argument to lay them bare.

In The Fearless Cross-Examiner, Patrick Malone breathes new life into cross-examination. He does not confine himself to leading questions. He does not ask only questions to which he knows the answer. He does not wait until closing argument to hammer home the point to the jury. He does not focus on narrow discrepancies in testimony but rather on fundamental contradictions that underlie credibility.

Malone’s thesis is that cross-examination can be destructive but also creative. Using court transcripts, he shows that opportunities exist for you to advance your client’s theory of the case while your opponent’s theory crumbles. The author sets up this thesis by using and extending his approach in Rules of the Road: Set up a commonsense rule that no person could disagree with, obtain the witness’s assent, and then force him or her to admit that the rule was broken.

For example, Malone does a good job explaining how to expose the conflict between an expert’s supposed objectivity and genuine bias and using these contradictions to support a larger narrative of self-serving testimony. The lawyer must demonstrate not only bias but also bad motives—the big picture, not just the minor discrepancies.

While experts get paid for testifying, plaintiff attorneys need to show that certain experts may be improperly motivated—such as a doctor whose principal source of income is testifying regularly for the defense, who last practiced years ago, whose credentials are no more than paper, or who never saw or treated the plaintiff.

Malone’s arsenal also includes techniques such as acknowledging the witness’s expertise but showing that it is in the wrong field, or simply demonstrating that the witness is ignorant of basic case facts.

Although the author’s examples are not entirely limited to his primary practice area (medical malpractice), his approach is heavily weighted toward expert examination. Additional discussion about cross-examining unpredictable lay witnesses—when expert reports, authoritative texts, and even deposition transcripts are not available—would be welcome, as would further development of Malone’s brief discussion of the cognitive psychology behind cross-examination. As a tool for dissecting expert testimony, however, Malone’s surgical approach is sharp and efficient.

Charles W. Day is the founder of The Day Law Practice in Rockville, Md. He can be reached at billday@daylawpractice.com

Reprinted with permission of Trial® (February 2017) copyright © 2017 American Association for Justice www.justice.org/publications

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