In this episode of The Sniper Defense, Thomas M. O’Toole, Ph.D. discusses practical tips for crafting effective opening statements.
By Thomas M. O’Toole, Ph.D.
Many attorneys and academics love to debate when cases are won or lost. Some argue that cases are won or lost in jury selection. Others point to opening statements. Research has yet to offer a definitive answer, mainly because the answer is that it is a little bit of everything. However, cross-examination rarely gets mention in the debate. Cross-examination has long been the land of lost opportunities for attorneys, particularly defense attorneys. There is so much that can be accomplished in cross-examination, yet it rarely receives the necessary pre-planning that it requires. Sure, attorneys outline the key areas of questioning, but little attention is given to cross-examination in terms of the art of presentation to the jurors. As evidence of this, in all of the shadow juries I have conducted over my career, the most common complaint from shadow jurors each day after trial is that attorneys lacked organization and clarity in their cross-examinations. This left the shadow jurors struggling to understand not only what was actually relevant, but why it was relevant. This makes the information less memorable and less likely to exert influence in deliberations. Relevance is not always clear to jurors, even though it may feel painfully obvious to the attorneys who have spent months or years in the trenches of discovery working to understand every facet of the case. Consequently, attorneys need to give greater attention to the important role of cross-examination at trial. Here are five reasons a good cross-examination is better than a great direct-examination. Continue reading