Winning Hard Cases with Dynamic Cross-Examination
Posted by Alex Miller on Jul 20, 2012
Reviewed by Ian S. Birk in Trial News (June 2012)
James H. McComas is the author of two books on trial advocacy published in 2011 by Trial Guides: Case Analysis: Winning Hard Cases Against the Odds and Dynamic Cross-Examination: A Whole New Way to Create Opportunities to Win. Together, they describe the method McComas used to win acquittals in very challenging cases during his 30 year career as a criminal defense attorney.
After Harvard Law School, McComas began his career at the vaunted Public Defender Service of the District of Columbia (PDS). Within just a few years of practice, McComas was in charge of training new trial counsel at PDS. Later, he traveled to Alaska to defend a public figure in a high profile criminal prosecution. Winning, he stayed in Alaska. It was there that he met Rick Friedman, whose firm he would later join as Of Counsel and who has written one of the forwards to Dynamic Cross-Examination.
"As I prepared for trial, I received the biggest break of my legal career—my client supposedly ‘confessed’ to the same cellmate that Jim’s client had. I got transcripts from Jim’s trial and read his cross of the cellmate. Then I read the rest of the trial transcript, cover to cover.
What I saw was a revelation. Cross after cross, Jim used the Dynamic Cross technique described in this book to dismantle the state’s case, and to create a plausible, persuasive reality of his notorious client’s innocence.
Friedman likely needs no more introduction to Trial News readers than McComas. But just in case, he is that Rick Friedman of so many landmark victories in insurance bad faith cases. If you do not buy, read, and re-read Case Analysis and Dynamic Cross-Examination after hearing Friedman describe the method they explain as the "biggest break of my legal career," then nothing I could say will make you do so. And yet there are many more reasons to read them!
Case Analysis explains an elegant, deceptively simple, yet powerful method of analyzing the points that matter in an adversary trial. McComas calls the things that will motivate a verdict for or against a client "outcome levers." They could be anything. In the example case, the first ever is the minority race of the accused defendant.
So far, this does not sound especially new. From the very beginning of law school, lawyers are trained to identify facts that help and those that hurt. And all but the most naÏve understand that facts or other factors can have significance other that that intended by the law or significance to which the law is blind. That a criminal defendant who is a member of a racial minority will fare worse in our system of criminal justice is a fact, depute the legal irrelevance of race.
Where the power of Case Analysis is seen is in the systematic matching of outcome levers for both sides and the analysis of the interplay between them. McComas walks relentlessly through the implications of the outcome levers in the example case—an African American accused of robbing a Caucasian shopkeeper. The analysis leads to the conclusion that the superior strategy is to attack the shopkeeper’s identification of the defendant as deliberate fabrication rather than "honest mistake."
Case Analysis takes less than half a day to read. It’s method can bring intellectual discipline to the analysis of any adversary trial.
The work of a Case Analysis bears fruit in Dynamic Cross-Examination. This is the name McComas gives to a style of cross-examination he contrasts with the traditional practice of asking only leading questions, whose answers are known, with the goal of eliciting primarily "yes" or "no" answers. Dynamic Cross-Examination relies on a Case Analysis and a psychological understanding of the opposition witness and the witness’s situation to answer "the important why questions in a way conducive to the acquittal of, or recovery by, our clients." Dynamic Cross-Examination at 3. There is a kinship between what McComas describes and the technique outlined in Friedman’s book Polarizing the Case and his article on the same subject that appeared in the April 2012 Trial News. A Dynamic Cross-Examination may aim to elicit why a witness would fabricate an identification of the defendant; why a defendant physician would miss a diagnosis; why a defense expert would try to imply that the plaintiff is a liar even while trying not to say so.
A Dynamic Cross-Examination is dependent, like so much else, on thorough preparation. But once the outcome levers of the case and the witness’s psychological situation are understood, Dynamic Cross-Examination promises opportunities to develop much more extraordinary testimony than could ever be achieved through a completely closed, traditional cross-examination.
Does it work? Why do I need it? Most of us have taken many, many depositions and cross-examined opposing witnesses at trial. There are lawyers out there who can get by without using McComas’s technique. But most would probably be better off with it in their tool box.
I have tried it in two deposition now, and it worked, although I was surprised both times by some of the answers I got. In one deposition, a witness had said that one of the drivers in an accident told her that he saw another vehicle approaching in his mirror. However, during direct examination by another lawyer at his deposition, the driver said he had no warning and that the accident was a complete surprise. On cross, I asked the driver about some of his habits. I probably would not have done so if I had not been reviewing Dynamic Cross-Examination for Trial News. The driver eventually testified at his deposition—contrary to his original statement—that would have been out of his habit. Then he conceded, in spite of his earlier testimony, that he could have look and seen the car approaching just as he originally said!
I lay no claim to being a master of cross-examination. But after two efforts to incorporate some of the principles of Case Analysis and Dynamic Cross-Examination into my own practice, my clients are already better off for it.
If you buy both books (recommended), you will also get two copies of McComas’s "Maxims for Attorneys for the Underdog." Here is a creed to keep you going when you are outgunned by the resources of the government or the coffers of an insurance company. Like the books of Rick Friedman and David Ball, McComas’s books show a genuine interest in helping us do better work for our clients. They are an inspiration to the hard work and high calling of leveling the playing field in American courtrooms. From now on, when I have a hard case, Case Analysis and Dynamic Cross-Examination will be among the first places I go.
Ian S. Birk, WSAJ EAGLE member, represents plaintiffs in insurance bad faith cases and other civil litigation at Keller Rohrback, LLP.
Reproduced by permission. ©2012 Trial News (June 2012) All rights reserved.