Commentary: Notes from the ABA annual meeting

Annual Meetings of the American Bar Association are veritable World's Fairs for lawyers. There is something for everyone. The recent meeting of the ABA in San Francisco proved no exception. It is difficult for anyone to complain about a visit to San Francisco, particularly when the weather was so sparkling.

Each ABA section or group, headquartered in a premier San Francisco hotel, presented educational programs and social events. Attending such meetings can be good for a lawyer's career in terms of networking, but they also offer lessons on the nitty-gritty of litigating.

One program presented by the Litigation Section and the Young Lawyers Division of the ABA discussed Advanced Techniques in Direct and Cross-Examinations. Organized by Prof. Stephen Saltzburg of the George Washington University Law School, the Hon. Marvin E. Aspen of the U.S. District Court for the Northern District of Illinois and myself, the program included brief lectures on direct and cross- examination, demonstrations and panel critiques. For those who couldn't make it to San Francisco, here's something of a cheat-sheet for when the exam comes.

The first presenter was James McElhaney on Direct Examination. McElhaney is a writer and lecturer on trial practice who has a regular column in the ABA's Litigation magazine and has authored several books on advocacy. He suggested several valuable points by which to improve your direct examinations:

*Disarm the jury by developing the most important points of your examination toward the beginning. Trivial details can be filled in later, after the big questions have been posed.

*Speak for the jury; ask questions to which the jury wants to know the answer.

*Use clear transitions to introduce new topics in long periods of examination. For example, I would now like to turn your attention to the 5th of May and ask where you were at 10:00 o'clock that day. Such transitions help the jury focus on where you're going and create a sense of story.

*Don't tell, but show. For example, don't ask the witness how he feels, but show how by asking questions like, Prior to the incident, what activities were you able to participate in? Now, what activities do you participate in? Why?

*Create memories. Strive for vivid questions and answers that leave the jury with memorable testimony. Try to tell a story with a series of verbal pictures.

MacCarthy on cross

Similarly, there was also a short lecture on cross-examination from Terry MacCarthy, who serves as the federal public defender in Illinois and has emerged as one of the leading lecturers around the country on direct and cross-examination. Here are some of his excellent pointers:

*Focus on the most important aspect of your cross-examination - what is happening in the minds of the jurors?

*Strive to enhance your credibility. In the end, the jurors will be thinking about whom they like best, you or the witness.

*Don't ask open-ended questions that allow the witness to participate in the development of the examination.

*Ask leading questions so that you can enhance your control.

*Try to develop a storyline or theme.

*Use simple, plain language; try not to sound like a lawyer.

Star power

The audience was also treated to sample direct and cross- examinations of witnesses in Rogers v. Metal Fabricators, a hypothetical wrongful discharge case. Lynn Rogers claimed she had been terminated because she refused to have sex with her boss. The defense argued Rogers had been fired because she'd failed to perform her job satisfactorily.

Panel critiques of the mock examinations offered up many nuggets of wisdom from some experienced students of trial advocacy. Participants stressed the importance of developing a rhythm in examinations, of fading into the background and putting all the attention on the witness, of asking shorter questions and relying on exhibits to corroborate testimony.

Concerning cross-examinations, the panel urged the audience to have a strong purpose in mind at the outset and to be selective in the topics covered. Also, the cross-examination need not be used to impeach, but can simply obtain helpful information. Likewise, prior inconsistent deposition testimony need not be relied on to impeach in a cross-examination, but can help refresh a witness' recollection.

Not without star power, the program featured a cameo from Steve Susman, the famous plaintiff's lawyer in commercial litigation. His cross-examination of Alex Cummings, Rogers' boss at Metal Fabricators, revealed the value of demonstrating when testimony defies common sense.

In question was a private letter the witness had written to Rogers, expressing how upset he was that she was acting coldly to him. As developed by Susman, Cummings' attempt to pass the note off as business correspondence was incredible and caused the audience great laughter.

San Franciso's Jim Brosnahan, noted for his many trials, including the defense of the American Taliban, demonstrated finesse and how a polite, soft cross-examination can reveal helpful information and, at the same time, destroy the credibility of the witness. Not once did Brosnahan feign anger or appear overbearing, and yet the witness' credibility was undermined by the answering of simple questions inconsistently.

Start planning

In his short lecture on Hot Tips for Direct and Cross- Examination, GW's Saltzburg emphasized the importance of preparing yourself to conduct direct and cross-examination. He discussed the pros and cons of writing out questions and suggested that doing so is not effective. By looking down all of the time at the written questions, you miss much of what goes on in the courtroom. If you have to write anything, write the answers that you seek as guidelines.

Before it was all over, Aspen commented on views from the bench, highlighting what judges like and dislike about cross-examinations. It is important, the judge pointed out, to allow the witness to fully answer a question. Trying to force a witness to answer yes or no without giving an opportunity to explain is unfair.

The program was videotaped, and if you are interested in obtaining a copy, contact the ABA Litigation Section in Chicago. Of course, it's a lot more fun to see it all in person, to meet the lawyers involved and talk to them over cocktails afterwards. If you missed San Francisco, try to make the next ABA Annual Meeting, which is sure to be a refreshing - and educational - break from the daily grind.

Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. His column runs Fridays in The Daily Record.

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