By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
“The case of the worn-out suit.” I have a favorite trial suit, which is identical to the one worn by TV’s Perry Mason during the entire first year of production. I suppose CBS didn’t have much of a budget in year one. It is gray with a little check pattern. I know because I have three Perry Mason publicity photos framed on my office wall, all depicting the star in in “my trial suit.”
I have worn it so long, my dry cleaner keeps sending me little notes which say, “worn out” (as if I don’t know that.) But it helps me pretend to be Perry Mason, much the same as when I made Superman costumes as a kid out of mom’s good towels and some clothes pins. (Except now I get paid to dress up.)
How good was Perry Mason on cross examination? He was so good, people in the courtroom gallery whom he wasn’t cross-examining, would stand up and confess.
How to Get Cross-Examination Confessions. My old boss, before I got my own Perry Mason suit, would throw me in the deep end a trial, just for fun (I suppose), by making me take a witness on cross, with barely any notice. He would turn to me, usually over a lunch break and say, “why don’t you take it.” (“Gulp!)”
What the hell do you do if you have to cross someone and maybe don’t have a lot of time to prepare? I certainly never got anyone in the audience to confess. But, my early days did teach me how to develop my own method to try to get the witness to confess.
Key concepts. Concept number one, cross examination is made up of two parts, you don’t always need both: (1) obtaining admissions and (2) impeachment. The witness may not confess to the whole thing, but I bet I can get some concessions out of him, so I try that first.
Cross examination only works because I have a judge that makes the witness answer me. I use this to my advantage. Then I can decide if I want to impeach the witness, or if I am happy with what he has conceded. (AKA, ending on a “high point.”)
Concept number two, know when to “shut up.” Perry Mason never cross-examined anyone unless he had a quarrel with what the witness said. He would frequently say, “no questions, your honor.”
If you don’t have a point to make, then all you do by asking questions is give the other side time to think of something they forgot to ask on direct. I have seen this a hundred times, where the witness on re-direct, hurts an opponent, when he should have been exiting the parking garage at the time.
Here is the formula I developed for preparing to obtain a confession on cross-examination. Get a note pad and start thinking of these concepts.
Step 1: Assign a duty. Either from a jury charge, or perhaps a contract promise, an employee manual, or a Medicare manual, what did the person have a duty to do? The idea is that I am going to ask them, “weren’t you supposed to do X, Y and Z?” “Did you think your weren’t supposed to keep your promise?” “Do you agree the manual says you are expected to do this?”
Step 2: Interest Protected. Next, I consider what interest is protected by the law. It is a law school concept that gets buried in our little novice lawyer minds. Why is the employee handbook written the way it is? What interest is the law trying to protect. I usually end up with something like Q: “You understand that other people are counting on you to keep your promise.” “You can see how it’s going to be bad for others if you don’t keep your promise?”
Step 3: What specifically was expected? Then I consider what a person with ideal performance of his duty would actually do. “What did the contract call for?” “What specifically would the law impose?” What would that look like?
Step 4: Use a timeline. Now I consider what did the person in question actually did? This is also helpful in figuring out what witnesses are needed to prove-up the case. A timeline, should not only include “what happened” and “when” but “who knows about it?” and “what documents prove it?”
Step 5: How could the person have done better. Now that we know what the witness was supposed to do and what they really did, juxtapose the two. This requires a “choice.” Where did the person fail to live up what was expected by the law or the contract? What could he have done better?
This is usually a test no one can pass. “You could have done things differently?” “You could have done X, Y or Z?” There was a path available to you? You just didn’t take it?”
Step 6: How hard would it have been to do better? My favorite question on cross, is “how hard would it have been?” We have established “You could have done X, you could have done Y.” “How hard is that?” (It does matter that an easy alternative exists.) “Not hard at all. . . . But you didn’t.”
Step 7: Assign a motive. When it comes to “motive” I don’t ask them “why,” I tell them. Cross examination is really often like “gaslighting”. They will have their own excuse and you have to tell them “no it isn’t.” Preferably gently. (Juries don’t like bullies.) “The truth is, you could have done better . . but you just didn’t care enough.”
Step 8: What admission are you demanding? Put it all together. What do you want him to say? You can’t get a witness to admit something, if you don’t know what you want that looks like. Prosecutors do this all the time, in preparing witness confessions. What would that look like in a civil case?: “My name is Witness. Step (1) I know I promised to do X, Y and Z, I should keep my promises. Step (2) I expected people to rely on my promises, or bad things would happen to them. Step (3) I know I promised to specifically do X, Y and Z. Step (4) Instead, what I really did is skip Y and/or Z . Step (5) I could have done Y and Z, if I had chosen to, but I didn’t Step (6) All it would have taken for me to do Y and Z is not very hard, might have cost a l few dollars more. Step (7) I didn’t do Y and Z because I just didn’t care enough. Or, I didn’t think about it. I wanted to make more money by taking shortcuts. I wanted to get away with doing it less carefully.”
Step 9: Convert your notes to a demand for admissions. Once you figure out what you should be asking, what admissions to demand, the last part is easy, the payoff. Cross examination differs from direct examination, in that you are not asking the witness to tell his story, you are demanding the witness agree to yours: “Isn’t it true, you intended my client to rely on your promise”. . . “You would agree with me that you could have done X”. . .. “ “Wouldn’t have been hard, would it?” “And the reason you didn’t, is to save a few bucks? Or, because you just didn’t care enough. . . ”
The best part is, unlike Perry Mason, no one needs to confess. If the questions are prepared well enough, it doesn’t matter whether the witness agrees or not. “The skunk has been tossed into the jury box,” simply by asking the question. An unbelievable “no” is just as good as a “yes” to a jury. Your version just has to be more credible than the witness’ version.
Step 10: Impeach. Once you have all the favorable admissions from the witness, pointed out his shortcomings, then you can move on to the process of making what the witness said on direct seem less believable. Irving Younger has a great series on “The Ten Commandments of Cross Examination,” which is really just the “Ten Commandments on Impeachment.” But that can be its own blog.