Patrick Malone discusses his new Cross Examination book
Posted by Alex Miller on Jul 12, 2015
The following is from an interview of Trial Guides author Patrick Malone on his new book The Fearless Cross Examiner: Win the Witness, Win the Case.
Trial Guides: What made you want to write a book on cross examination?
Patrick Malone: What made me want to write a book for lawyers on cross examination is that the way I grew up learning how to do cross examination never worked for me. It was frustrating. I could never figure out how you’re always supposed to ask only leading questions, and ask questions you only know the answers to. I could never do it right.
It’s hard to know if I had an epiphany or what happened, but I gradually realized that it was a totally wrong approach. It was counterproductive, and psychologically fearful. It teaches people to be afraid of cross-examination, and not to do an effective cross examination. So, I felt it was really important to articulate what I could figure out about cross examination. What actually works, what I could do differently, and what I saw other lawyers do differently. I wanted to work out a system for how people can analyze their cases, analyze each witness, and analyze themselves as the trial lawyer to figure out the best approach for each witness in each case for each cross examination. So that’s where I started the book.
Trial Guides: What topics does this book cover and how is it structured?
Patrick Malone: This book covers cross examination from a to z. I call it breaking the rules because I try to break the old rules of cross examination taught in Francis Wellman's The Art of Cross Examination, and Irving Younger's "Ten Commandments of Cross Examination," neither of which work well today. I realized I needed to set up some new and softer guidelines. But the cross examination book covers the whole topic of cross-examination, especially for plaintiffs’ lawyers. And it’s mostly going to be about the cross examination of expert witnesses, because those are the most difficult cross examinations we do. It’s not only about analyzing how to approach each cross, but also how to organize the cross; how to set it up, and how to execute it.
Then I have multiple examples throughout the book of how to do the different elements of cross. The book covers important subjects in their own chapters like medical literature, evidentiary rule pitfalls, and the purpose of cross examination. Then we cover some of the common shortcomings of lawyers, and the old approach that makes cross examination less effective. I think it’s a pretty ambitious book. It’s looking to create a new system for more effective, more powerful, and more persuasive cross examination.
Who is The Fearless Cross Examiner for?
Trial Guides: How is The Fearless Cross Examiner different from other cross examination books?
Patrick Malone: Most of the cross-examination books I’ve seen are treatises that are dry or have a narrow approach that I don’t agree with. There’s one pretty well-known cross examination book that’s still out in bookstores that says the number one end all be all goal for the cross examiner is to look good. I don’t think that’s the goal, with all due respect. I think the goal is to win the case.
Trial Guides: Who is this book written for? Or who do you think would benefit the most from buying it, such as new lawyers, experienced lawyers, people in specific practice areas.
Patrick Malone: This cross examination book is written for all levels of experience in trial lawyers. It’s written mostly for plaintiff lawyers, although there are some defense lawyers out there who could benefit from it. For practice areas, I think there are lots of universal rules here. It’s mostly civil practice. The examples are mostly in the realm of personal injury cross examinations, medical malpractice cross examinations, product liability cross examinations, as well as other practice areas. But, I think the lessons for how to handle certain kinds of witnesses are pretty universal.
Trial Guides: Do you think this book could be used in law schools to help build their practical curriculum?
Patrick Malone: Yes, I think that one of the fundamental skills that needs to be taught in trial advocacy classes is how to cross examine a witness. This book will give the student a huge leg up in learning cross examination. Now it’s not a book you can read in a single setting or even a week and then you know everything and can do everything. It’s part of a process. This book teaches you how to train yourself to be a better cross examiner. One of the things I do in the book, is have a work projects at the end of the chapter where I give a little tidbit where I’m asking the reader to do a little work to bring home the lessons of a particular chapter.
Problems Solved by The Fearless Cross Examiner:
Trial Guides: Do you think this is a book that either law students in a trial advocacy program or new lawyers just starting out would use or find helpful?
Patrick Malone: I want new lawyers to read this book. I don’t want them to be scared off by the fact that they’re going to realize when they read this book that cross examination is a really big topic and they can’t learn it overnight. You can learn it with this book. You aren’t going to learn it in a week or a month, it’s going to be a process. I want to help people get to the right place in terms of starting to formulate their initial baby steps in doing it. I want them to get the book and I think it will be powerful for them, I don’t want it to be the only trial advocacy book they get, but it’s definitely an important part of the arsenal.
The book is, of course, also for experienced lawyers wanting to improve their cross examination skills.
Trial Guides: What tough problems do you think this book helps the reader solve?
Patrick Malone: The toughest problem that cross examiners face is fear of failure. Part of this is our own failure, we’re trained to think it’s so dangerous, you know we’re never supposed to ask a question we don’t know the answer to, shut up and sit-down approach that most cross exam training is about. So getting past the fear and getting to a better place where you analyze your strengths, the witness’ vulnerabilities, and the needs of the case and you triangulate those three things to come up with a powerful and unique cross that works for this witness. That’s the fundamental problem that I try to address.
Learn more about The Fearless Cross Examiner: Win the Witness, Win the Case by Patrick Malone.