Pozner and Dodd on “Constructive Cross-Examination”

Jamison KoehlerTrial Advocacy

It is what we see on T.V. and in the movies. It is what our clients expect of us. And, providing us with war stories to tell our friends and colleagues, it is lots of fun to do. This is the tearing down of the opponent’s witness on cross-examination. We confront the witness. We force her into concessions. We catch her in all sorts of contradictions. Lies, lies, all stinking lies!

It rarely happens this way. Nor, if you listen to Larry Pozner and Roger J. Dodd, should it.

Yes, you need to challenge adverse witnesses when their testimony is hurting your case. But you don’t want to draw attention to “bad facts” that you are not able to rebut. Nor do you want to do anything in any overly confrontational way. You don’t want to get the witness’ back up. You don’t want to signal to the finder-of-fact that the witness has hurt you, thereby giving the testimony greater significance. Moreover, disrespecting a sympathetic witness will not earn you any points with the jury. As Pozner and Dodd out it:  “Outside of the courtroom, no one wants to listen to confrontation to an angry tone that lasts very long.  Inside the courtroom where there is no escape, every tone used is magnified.”

Finally, say Pozner and Dodd, you sandwich the confrontation between other “chapters” of cross-examination in which you use the opposing side’s witnesses to bring out facts that support your theory of the case.  This, according to Pozner and Dodd, should be the primary focus of your cross-examination. After all, it “is the presentation of these facts, not rhetoric, that leads to the desired verdict,” and the finder-of-fact is more likely to believe facts that support your theory of the case when those same facts came from the other side.

Versed in the ways of movies and TV, the client may not appreciate what you are doing until your closing argument. At that time, you weave together the seemingly innocuous concessions made by the opposing side’s witnesses into a coherent and convincing argument that is based on your version of events.