Embed Size (px)
Citation preview
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.”
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
