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Jay Milano Attorney and Counselor at Law

Tag Archives: cross-examination

How to Win Cases – Part I

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

Unless there is a vigorous objection, this is the first of a series of columns on trial practice. They will all be by me. In fact, we are already looking for authors qualified on the topic (read, willing to write).

Jimmy Buffet introduces one of his songs as a “love song from a different point of view.” This will be trial tactics from a different point of view, an attempt to cover ground not well trod. (The fact that the song is entitled “Why Don’t We Get Drunk and Screw” should not be held against the County Bar).

Any analysis should start with a baseline. In this case we should look at the core principals of effective trial work. They are, I believe:

  1. Credibility,
  2. Integrity,
  3. Education,
  4. Control,
  5. Creativity, and
  6. Simplicity.

Before you dismiss this assessment as too basic, stop and think of how many lawyers you know who don’t hit 2 of the 5 on a daily basis.

1. Credibility

Each year I have at least one law student tell me that it is okay to assist the client in manufacturing a story that will help them to win. Too often we see practicing lawyers who follow that creed. We live in a country where “plausible deniability” and “spin” are considered art forms. Try to practice that way and you will kill your clients and kill your practice.

There is nothing, nothing, nothing more important to the success of your practice. The Justice Center and the Federal Building are very small towns. You get caught hedging even once and people will know. One way to think of credibility is as your duty to tomorrow’s client.

Credibility is also bound up with the concept of how you present your claims. We have all seen lawyers who make outrageous demands in an effort to bluster their way to victory. It is a very shortsighted strategy. Stake out the furthest reasonable position and hold it.

2. Integrity

Integrity is close in concept to credibility, but the difference is operative. For this purpose, integrity means the willingness to do the work necessary to complete the task. No one is going to do you any favors, certainly not someone in a more powerful position than you. The only way that you will succeed over time is to do the work on each case. That means digging in and reading the statutes and rules before all else. As an aside, if you want to understand a new concept, look at the jury instructions.

3. Education

We must stop considering ourselves as warriors and start to look at ourselves as teachers. It is the job of the trial lawyer to educate: first ourselves, then our clients, then our opponents, then the judge, and finally the jury. Do not expect anyone to understand your case. Take the time to explain. Pretrials are for educating the judge as to your point of view. Settlement conferences are for educating your opponents. Office meetings are for educating your clients. Educating ourselves is a continuous process.

4. Control

Here comes the first internal contradiction. To be a good trial lawyer, you need to be a teacher. Control is about the wars we fight.

You need to control yourself. First, look at the practice as an intellectual exercise. A lawyer cannot afford the luxury of recreational anger. (I did not make that up, but cannot remember the name of the lawyer from whom I heard it many years ago.) If you are dealing with a jerk of an opponent, play above or below him. Do not engage, as you will lose focus.

You need to control the situation. Form the issues in discussions. Be the person in the courtroom to whom the jury looks for the right answer. Be the person to whom the judge looks for guidance. Do that by being prepared for the questions. Read the rules and statutes and the cases. If there is one common complaint among judges, it is unprepared lawyers. Knowledge is control.

5. Creativity

The finest compliment you can hear is: “We have never done it that way, but it sounds fair, let’s do it.”

Do not copy and here is why. You need to understand why you are doing something before you can learn it. Why am I asking this question? Why do these facts fit my case? Why did the court rule the way it did? What is the logic? We spend too much time calling each other to ask for a copy of a complaint or interrogatories or a motion. You do not need to reinvent each time you undertake a task, but you do need to know what you are trying to do before you blindly follow.

6. Simplicity

In many ways this is the most important principal. What if the way to measure intelligence is to determine at how many levels of abstraction a person can think. Chess players think many moves ahead, contemplating all of the possibilities. Most of us cannot think past lunch. Jurors may be smarter than lawyers, but in the context of a trial, will hold to the most basic and easily understood principals. Do not get lost in the upper tiers of argument.

We have set the baseline. Nowhere to go from here, but up. See you in the next issue.

Law and Fact
The Journal of the Cuyahoga County Bar Association
April 2003

How to Win Cases – Part II

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

What makes trial exciting is the heat. Cross-examination is the crucible which, when used correctly, will burn away the mistakes and the shadings and the lies, and leave the truth.

David Pomerantz, in the article preceding, treats the subject of expert cross-examination with depth and precision. As is the nature of this series, let’s divide out a single point. In this piece we will look at how to cross-examine a “target witness” (usually an expert) through an “innocent” witness.

Of the five constructs on which this series is premised (Credibility, Integrity,  Education, Control, and Creativity) control applies most directly to cross-examination. We have all heard, and believe to our bones, that control in cross is manifested by the closed-end question. That is absolutely true. (Of course there are times when you have been so effective that you invite an expansive response, either because you know the answer helps rather than hurts, or because you have progressed to a point where the answer makes no difference.)

That concept of control applies, as do almost all strategies of cross-examination, when directly confronting a witness. Isn’t it true doctor…? Isn’t it true officer…? Isn’t it true sir…? This is the form that we have all used.

We want to look at control from a different…and maybe more creative…point of view. Think now about the idea of using one witness to cross-examine another. What if you could control your “target” witness through the testimony of an “innocent”? Here is how you would do it.

Begin with the premise that one method of effective cross is to move from the general to the specific. Again, we are working with an expert or professional witness. Your strategy is to have them agree to general relevant principles first and then move to the specifics of your case. You apply the general constructs to what happened or what they did. Think in terms of the way a shark hunts, circling its prey more closely with each pass, bumping occasionally to check for reaction. You are circling by means of generally accepted ideas. Your bump as cross-examiner is the mildly pointed questions early on to gauge the reaction of the witness to confrontation. The kill occurs if you can show the disparity between the general principles and the specifics of the witness’s testimony.

I will use a criminal case as an example. Generally there will be a detective sitting at the trial table for the entire proceeding. It is his case and he is very experienced. It is unlikely that you will be able to “break” him. It is far more likely that he will break you. He generally testifies last to clean up.

But what if your general questions are asked of a preliminary “innocent” witness? A uniformed policeman is a good example. Early in the case, a uniformed officer will testify. Usually the first on any scene, she provides background information and any evidence which she might have gathered. Under the standard model there will be few if any questions.

However, under this model you want to use the “innocent” to lay the foundation of general principles that will underlie your point. Let’s assume you have a case where no fingerprints were taken. The “innocent” will gladly tell you about how easily prints are taken and how infallible they are and how they solve cases. The target then sits and squirms knowing that eventually he will have to answer for why he did not do what that nice young woman in uniform told the jury was appropriate.

You have laid the foundation of general principles upon which you will cross-examine the target without yet having asked him a question. He has had no ability to see you coming and to shade his response.

Please don’t limit this technique to criminal cases. Physicians will opine on general principles as well. Use your opponent’s expert to acknowledge literature upon which your expert relies. Emergency room doctors make excellent “innocents.”

The point of this piece: 1) determine first what your issues are, and then 2) look to who might give you the evidence to support your position. Look outside the obvious. Be creative while strengthening the ability to maintain control.

Law and Fact
The Journal of the Cuyahoga County Bar Association
July 2003

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