Detecting Non-Answers During Cross-Examination

Posted on April 27, 2010 by John Day

Elliott Wilcox shares another great post from his Winning Trial Advocacy Tips blog.  I know I rant and rave about how wonderful this blog is and I fear I may be accused of a man-crush on Elliott, a gentleman I have never spoken with, much less met.  But there is so much crap spread by those who think that they know something about trial preparation and trial advocacy that when someone actually shares something of value I feel compelled to applaud it - loud and often.  Elliott gets it and, more importantly, he shares it.

The latest cheer goes out for a post titled "How to Detect Non-Answers During Cross-Examination."  Here is an excerpt:

To become a quality cross-examiner, you must master the ability to critically listen to  witness’s answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you’ll need to recognize is the “non-answer.”  Expert witnesses and well-prepped witnesses are the best masters of the “non-answer.”  At their finest, their responses don’t even appear to be evasive.  They’ll make it sound like they’ve answered your question, but in fact, they’re completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear.

Elliott goes on to list nine examples of non-answers to questions.  Here are two of them:

Non-Answer #1:   Completely Avoiding the Issue

Q: Does this skirt make me look fat?
A: I love you.  (Or you can try Dave Barry’s response: Sticking a fork in one or both eyes to avoid answering… it’s much less painful!)

Non-Answer #2:   Describing Expected Procedures

Q: Did you request a CAT-scan?
A: It’s normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

This is good stuff.  A review of this post will bring back memories of errors you have made during depositions, errors only discovered after you picked up the transcript to prepare a response to a motion for summary judgment or a cross-exam at trial.  And it will help you make sure you don't make those mistakes again.

Thanks, Elliott.

 

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Younger's 10 Commandments of Cross Examination

Posted on March 3, 2010 by John Day

Some of you are a little young to remember Irving Younger, the great trial advocacy teacher.  Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years.

Experienced trial lawyers would take issue with some of Younger's  commandments, arguing that from time to time they should be ignored.  I agree, but that does not mean that they do not have value.  

Here is a copy for your reading pleasure.

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Should You Call A Witness a Liar?

Posted on December 17, 2009 by John Day

 Winning Trial Advocacy Tips has a great post on the subject of whether you should ever call a witness a liar.

An excerpt:

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us.  But jurors don’t think like that.  Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them.  (Yes, they even expect 10x convicted felons to tell the truth.)  If you attack a witness’s testimony by calling him a liar, you’re going to need toprove that he lied.  If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

I encourage you to read the entire post.  

 

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