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Matt Dodd
The Narrative of Cross-Examination (at Deposition and Trial)
Presented for the Luke Barteaux and the Oklahoma Bar Association Family Law Section
November 3, 2016
What is Your Client’s Narrative
❖ Your theory of the case is your client’s story
❖ Why should the fact-finder care about your client?
❖ Why should the fact-finder side with your client?
❖ How can the fact-finder help your client?
1
When Do You Tell Your Client’s Story?
At every opportunity:❖ In your complaint
❖ In every pleading
❖ At every hearing
❖ During depositions
❖ At trial
Destructive / Constructive CrossDestructive Cross — the use of cross-examination to attack your opponent’s theory
❖ Focuses on your opponent’s theory
Constructive Cross — the use of cross-examination chapters to tell your client’s story and support your theory of the case
❖ Focuses on your theory
2
Using the Narrative in Cross
Availability Bias—❖ The facts most discussed during trial are the facts that
remain in the forefront of the fact-finder’s thinking
❖ The amount of time spent is the measure of importance
❖ You control which facts are discussed and the flow of those facts as they are presented to the fact-finder
The Only Three Rules of Cross
1. Leading questions only
2. One new fact per question
3. Logical progression to one specific goal
3
What is a Chapter?
A group of leading questions…
…that progress in a logical sequence,
start generally, and…
…become increasingly specific…
to establish a factual goal
Conclusions are for Closing
❖ Summary questions allow a witness to explain all his or her bad answers
❖ Chapters do not end with a ka-boom, bang, or a crescendo…except in the movies.
4
Chapter Bundles
A group of related chapters used together to establish a goal
Chapter Bundles in Depositions
Depositions:❖ Open-ended chapters to discover facts❖ Closed-ended chapters seeking admissions❖ Hybrid chapters to lock in admissions based
on new facts❖ Contrast chapters based on scripted or
spontaneous loops
5
Mind Shifts Using the Chapter Method
1. Prep with cross-examination in mind
2. Teach your case
3. Break down cross-examination into a series of stories
4. Selectively create and control anxiety
Chapters Repeat
❖ Save your chapters. ❖ Organize your chapters. ❖ Re-use your chapters.
6
Case Preparation
Always be mindful of the narrative
❖ Gather facts to support the narrative
❖ Call witnesses to explain the narrative
❖ Cross-examine witnesses to reinforce the narrative
Chapter Preparation
❖ One chapter per page
❖ Use only one side of the page
❖ Chapters have names, not numbers
Result = greater control and flexibility + less anxiety
7
Starting your Case on Cross
❖ Cross-examination is inherently more interesting than direct examination
❖ Fact-finder is busy and wants to get to the point
❖ It will take your opponent / witnesses by surprise
Looping
Intentionally reusing words / phrases of your choice to:
❖ Continue the narrative
❖ Add emphasis and focus
❖ Avoid objections
❖ Decrease risk
8
Use trilogies to cement your narrative
❖ Visualize
❖ Emphasize
❖ Memorize
Techniques to Control the Runaway Witness
9
Historical Aside
RJD: “Do you want to tell me where you were and what
you were up to?”
MAD: Pregnant pause…
RJD: “It’ll be quicker if I don’t have to cross you.”
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