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 →
In this episode of The Sniper Defense, Tom discusses practical strategies for defense attorneys to consider as they try to make the most of their cross examination opportunities during the plaintiff’s case-in-chief.
Each year in the United States, juries award billions of dollars in damages to plaintiffs. In 2014, a jury in Florida awarded $23.6 billion to a single plaintiff. There are two possible explanations for these extraordinary numbers. First, for a variety of reasons, defense attorneys are often forced to take unwinnable cases all the way to trial. In these situations, they do the best they can, but cannot avoid the inevitable.
The second explanation is that defense attorneys are failing in some way to adequately try their cases. This is not intended to give insult to defense attorneys. In fact, it’s an overdue acknowledgement of the overwhelming burden that is placed at their feet. While the typical plaintiff’s case has a natural story and appeal that insulates it from even the most unskilled plaintiff attorneys, convincing a judge and jury to embrace a defense theory requires a delicate dance down a path that is fraught with danger at every turn. Continue reading →
A while back I was interrupted by a doorbell as I was telling a group of friends a particularly riveting story. Once the person had left, I waited for someone to ask me, “What happened then?” I mean – weren’t they all dying to hear the rest? Turns out, the answers was no. The conversation resumed, but no one seemed to remember that I was in the middle of a story. Now, this doesn’t happen to me very often, so I of course stewed about it and tried to come up with a justifiable reason why they weren’t interested. All I could come up with was the painful truth – no one cared.
This situation stuck with me and since then I pay attention to what happens when someone is interrupted during a story: Do people ask questions to get the story-teller to continue? Does the conversation move on with no one remembering that someone was in the middle of a story? Does the story-teller take up where they left off even though no one seems to care? What I noticed in my non-scientific investigation is that it is fairly rare that someone asks the story-teller a question to get them to continue – the story must be particularly intriguing, or was only missing the big finale. When the person continues without being asked, most of the time you can sense the disinterest as people politely let the person finish. Often, everyone simply forgets someone was telling a story and they move to the next subject. Continue reading →