Dynamic Cross-Examination reviewed in the Champion
Posted by Alex Miller on May 31, 2012
Book Review of Dynamic Cross Examination
by Gary Kohlman in the Champion (May 2012)
James McComas has written a highly provocative book on cross-examination. This book—an absolute must-read for aspiring and seasoned trial lawyers alike—pulls the curtain wide open to reveal why some cross-examinations succeed while others fail. More fundamentally, McComas shows why some criminal defense and plaintiff’s attorneys are successful in difficult cases, but others are not.
To fully appreciate the wisdom of the book, one must consider two phenomena, which attorneys usually assume are unrelated and which every seasoned trial lawyer experiences. The first is that moment when it becomes crystal clear which party will win and which will lose. Second, most trial lawyers know what it’s like when, in the midst of a cross-examination, the witness gives an unexpected answer that suddenly shifts the examination in a direction that the lawyer did not anticipate.
In this remarkable book, McComas brilliantly demonstrates the very close relationship between those two events. In a carefully thought-out manner, relying heavily on highly instructive case studies, he shows how what he describes as a Dynamic Cross-Examination can quite often create the moment in which a trial is decided.
This book is accessible to every level of practitioner because the foundation of the McComas method starts with thorough and imaginative preparation long before the trial. His theory starts with an assumption that the practitioner knows every nook and cranny of the case. From there, McComas stresses the significance of developing a case theory that takes advantage of every favorable fact and blunts the unfavorable ones. Finally, the McComas model assumes the attorney fully understands that every single action she takes in the courtroom, including the color of her shoes, is an act of advocacy that she must calculate as part of the trial plan.
With these building blocks in place, McComas walks the reader through the traditional methods of cross-examination that stress total attorney control (the yes-no approach). McComas convincingly shows that overreliance on the traditional methods of cross-examination may make the lawyer look good, but the end product is rarely going to accomplish more than holding the ground the attorney held after she started the cross. McComas notes that attorneys should develop the ability to do a yes-no cross because they can effectively integrate it into a dynamic cross-examination, but it should never be the centerpiece.
What McComas advocates is nothing less than a full-scale dialogue with the witness—or, as he puts it, "a fight or a dance." This is a dialogue that breaks all the rules. It uses open-ended questions, which require the witness to produce the opportunities that enable the examiner to promote her case. As McComas shows through his case studies, the open-ended questions coax answers from the witness that expose to the jury who the witness really is and what is truly motivating his testimony. Gone, of course, is the safety net that comes from "never asking a question you don’t know the answer to," but McComas shows that the supposed risks of doing so have been greatly overstated. He also emphasizes that the ultimate weapon the attorney has is the logic of her case theory. If the witness gives an answer that fits the case theory, McComas shows how to display that to the jury quickly. If, on the other hand, the answer is inconsistent with the case theory, the attorney uses the logic of the case theory to demonstrate the testimony’s falsity.
Suggesting that the attorney is not in complete control of the cross-examination is foreign to most practitioners. But that is the beauty of the case studies. They illustrate that the attorney ultimately does stay in control by the questions she chooses to ask, and by her ability to use the answers to advance the case theory.
Imagine a book that explains how Bob Dylan strung his lyrics together, or one that reveals how Hank Aaron could distinguish in a millisecond a fastball from a curve. Those books remain to be written, but McComas has given attorneys the equivalent in the area of trial practice.
Reproduced by permission. ©2012 the Champion (May 2012) All rights reserved.