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LITIGATING TO WIN THROUGH ADVANCED TRAIL ADVOCACY
NBI Seminar December 17, 2010
V. COMPREHENSIVE CROSS EXAMINATION
NBI Seminar December 17, 2010
VII. BUILDING A POWERFUL CLOSING ARGUMENT
NBI Seminar December 17, 2010
TABLE OF CONTENTS
I. Should You Always Use Cross-Examination?II. Developing Causes of Action and the Case
ThemeIII. Rules of Evidence You Need to KnowIV. Plotting Your Strategy BeforehandV. Selecting an Effective Sequence for Cross-
ExaminationVI. Destroying Safe HavensVII. Handling and Introducing ExhibitsVIII. Effective Cross-Examination of Expert Witnesses
TABLE OF CONTENTS
I. Anatomy of a Persuasive Closing ArgumentII. Using Body Language to Make Your PointIII. How Pace and Tempo Can Bolster Your CaseIV. Problem Solving With Your Closing ArgumentV. Effective Use of Analogies, Fables and
MetaphorsVI. Pitfalls to Avoid When Making Closing Arguments
WHEN TO CROSS
Don’t cross examine a witness just because he/she is a witness detrimental to your case.Only cross examine if doing so can help your case.Cross examining a witness that hurts your case only serves to solidify your opponents position.
DEVELOPING CASE THEMES
Start early—well ahead of trialOutline theme, story, witnesses and exhibits in voir dire and opening statementsYour cross examination should be consistent and move your case theme forward
RULES OF EVIDENCE
• Rule 401—Definition of Relevant Evidence• Rule 403—Exclusion of Relevant Evidence on Grounds of
Prejudice• Rule 404—Character Evidence Not Admissible to Prove Conduct• Rule 602—Lack of Personal Knowledge• Rule 701—Opinion Testimony By Lay Witness• Rule 801—Hearsay Defined• Rule 803—Hearsay Exceptions• Rule 804—Hearsy Exceptions; Declarant Unavailable• Rule 1001—Definitions of Writings Recordings and Photographs• Rule 1002—Requirement of Original• Rule 1003—Admisibility of Duplicates• See the attached handout
PLOTTING YOUR STRATEGY
Start early—well ahead of trialWhat can this witness say that can help your case?How do you make him/her say it?Think outside the boxDon’t let the witness get comfortable• Don’t let them anticipate the next question
SELECTING A SEQUENCE
Do not take the witness’ deposition a second time• You only have the jury’s attention for a short
time, use it wisely. Be selective about your questions.
• Impeachment on anything but a material question of fact is ineffective, and improper.
• End on an up tick.
TAKING CONTROL
Focus on the examiner—not the witnessUse controlling, confining, leading questionsOnly ask questions to which you already know the answerDo not argue with the witnessDo not restate direct examinationDo not let the witness explain
TAKING CONTROL
You, the witness and the jury should always feel like the piano is about to fall. Taking control means the witness knows it is coming but cannot avoid it because you have boxed him/her in with your questions.
TAKING CONTROL
