By Bill Day
Originally published at daylawpractice.com.
In my experience, people often do not think of law as a particularly creative pursuit. As Daniel Webster famously observed, “If he would be a great lawyer, he must first consent to become a great drudge.” It is not hard to conjure up an image of the hapless wretch poring over contracts surrounded by crumbling, dust covered, leather bound tomes, even if nowadays it is more often late nights in the pale blue glow of the flat screen. The dreary life of the law student leads to the dreary life of the highly paid corporate serf, trapped in a maze of rigid statutes and stale precedents.
Trial lawyers get a little more credit for flash, even if all too often it comes with a certain seedy undertone. But all of the quick tricks in front of the TV jury, the product of a one-hour police investigation and a few quick conferences, fail to capture the depth of thought, preparation, and practice necessary to conduct a successful jury trial. Too often the common perception of the trial lawyer is a person who is slick rather than sage.
How refreshing it is, then, to come across a trial lawyer’s manual that combines a thoughtful approach with a brisk style that dispels both stereotypes. Pat Malone’s Fearless Cross-Examiner breathes new life into the most critical and dramatic element of courtroom practice, cross-examination. He abandons the hoary flim flam of misdirecting the witness and then hiding the ball until the lawyer can safely address the jury after the hapless witness steps down. Malone shows how this approach is not only dishonest but also ineffective; the great cross-examinations he cites break all the “rules” that have been hammered into generations of law students.
Malone takes a more thoughtful and principled approach, one designed not only for greater effectiveness in the courtroom but also for restoring the reputation of cross as the “greatest legal engine ever invented for the discovery of truth.”
His approach requires the lawyer to align himself with basic, generally accepted principles, well-known to lawyers under the rubric of “rules of the road.” The strategy is to confront the witness with a rule that he must embrace or look foolish and then demonstrate how that rule has been violated. Malone’s nuanced approach requires a choice among strategies, sometimes with a bit of mix and match.
Confronted with an adverse witness, one can attempt to co-opt him by bringing him around to one’s own point of view. This idea of using the adverse witness to build one’s own case runs directly contrary to the conventional wisdom that the sole purpose of cross-examination is to discredit a witness.
Of course, when a witness will not be persuaded to come around to one’s own point of view by gentle persuasion, sometimes he must be shown the error of his ways. Malone, however, refuses to be boxed into a strategy of petty contradiction based on peppering the witness with leading questions until the lawyer can pounce on some minor error or lapse of memory.
Fundamentally, Malone has too much respect for the jury to engage in such petty gamesmanship. He is after bigger quarry. If the jury is going to see through the expert for hire or the recalcitrant opponent, he needs to expose fundamental bias or self-interested contradictions. Malone understands that people, juries, are interested in truth. They will forgive error, but can be terribly intolerant of dishonesty. Peeling away layer after layer of lies can be accomplished by any number of methods: demonstrating that a witness is not qualified or even that his experience does not bear on the subject at hand, that his self-interest has biased him, that he is contradicted by generally accepted authority, or even that he has tailored his more recent statements to suit his objectives at trial.
Whichever method Malone selects, he is focused on telling the jury a clear and coherent story with a cogent point at the end. Not for him leaving the point of the cross until the closing argument, when the story is a distant memory. Malone is playing the high stakes game of giving the witness room to talk and an opportunity to be heard, a game that can only be won by careful planning and creative insight directed at substantial goals. The jury needs to get the big idea, not the petty point.
Very much a how-to book for lawyers, this tightly written manual could nevertheless be profitably read by aspiring law students or even people who are simply interested in the mechanics of how the drama at trial unfolds. Highly recommended.
The Fearless Cross-Examiner
Win the Witness, Win the Case
by Patrick Malone