Vol. 77, No. 5, May
Cross-examination Without Discovery: Part I
There are many situations in which attorneys must cross examine a
witness without the benefit of discovery. For those situations, improve
the quality of your cross-examination by preparing for a generic type of
witness, rather than a particular witness. Nationally recognized experts
Larry Pozner and Roger Dodd explain how.
by Roger Dodd & Larry
In Wisconsin we generally think of trials taking place after
extensive discovery, including depositions. In practice, however, there
are many circumstances in which attorneys will need to cross examine
witnesses without having had the opportunity to depose them first. In
virtually all criminal trials, attorneys confront witnesses without the
benefit of a deposition. This often is true in juvenile and civil
commitment cases with strict timelines and in other cases, like small
claims, that frequently are litigated on limited budgets for lesser
amounts of damages. In these circumstances, a lawyer's ability to
cross-examine well without the benefit of a prior deposition often is
critical to success in the action.
Roger Dodd practices
law in Valdosta, Ga., and is board certified in both civil and criminal
law by the National Board of Trial Advocacy. His practice includes
criminal defense, family law, plaintiff's personal injury, and wrongful
death cases, and representation of both plaintiffs and defendants in
medical malpractice claims. He is a fellow of the American Academy of
Matrimonial Lawyers and is listed in the Best Lawyers in
Larry Pozner is past
president of the National Association of Criminal Defense Lawyers. His
Denver, Colo., law practice includes criminal defense and complex civil
litigation. He is listed in the Best Lawyers in America. As a
frequent commentator on legal issues, Pozner has appeared on the "NBC
Nightly News," the "NBC Today Show," CNN, "Meet the Press," Court TV,
and the "Jim Lehrer News Hour."
This column is excerpted from Chapter 31 of Cross-Examination:
Science and Technique by Larry Pozner and Roger Dodd (Lexis Law
Publishing). Due to space, the materials have been heavily edited. Parts
2 and 3 of this series will run in June and July.
In this first article in a three-part series, excerpted from Chapter
31 of their book Cross-Examination: Science and Technique
(Lexis Law Publishing), Larry Pozner and Roger Dodd lay out
some methods of initial preparation for the "undiscovered witness."
The Scenario of the "No Discovery" Witness
The trial lawyer sits confidently at counsel table. Relatively
confident, because the lawyer is prepared in a way that reduces her
stress to an acceptable level. And then it happens.
The opponent calls the next witness. The cross-examiner does not know
the witness. Maybe she does not even know why this witness is being
called. Perhaps she does not even recognize the witness's name. Or
perhaps she does know this witness and why this witness is being called.
The one thing she does know is this: she has no pre-trial discovery from
or about this witness. Her stomach is in knots. Her confidence is fast
evaporating. Anger, fear, and frustration engulf her.
This situation has intentionally been painted to be "as bad as it can
be." The lawyer must now assemble a useful cross-examination and deliver
it in just minutes. It can be done. It is not a test of willpower or
spontaneity, but of science and technique. There are useful techniques
to be employed in these situations.
So, the cross-examiner must put herself in the needed mind-set. The
opponent has called a witness. The lawyer has no discovery on this
witness. That means there are no reports of interviews and no
depositions. The trial lawyer must quickly prepare to cross-examine this
Control Your Emotions
First, the trial lawyer must recognize that she is angry, or
frustrated, or some other self-destructive and unhelpful emotion. The
lawyer must get rid of that distraction if she is to do a competent job.
She is in trial. She must postpone pondering questions such as: Why did
this happen? Why are "they" doing this to me? What did I do wrong to let
this happen or not be able to fix it? Now it is time to focus on
something that will help handle this problem. Pick a different career
later, concentrate now.
Anger, frustration, or self-doubt will betray the trial lawyer in
many ways. If the lawyer concentrates on the wrong done to her, it will
distract her from listening to the witness. During the
cross-examination, the lawyer's unusually hostile demeanor will portray
her as being either frustrated or angry. This will distract the listener
(be it a judge or jury) from listening to the substance of the
cross-examination and may give the impression to the fact finder that
the direct examination was extremely damaging, even if it wasn't.
In such circumstances, the lawyer must rely on the familiar
techniques she has learned - short questions, grouped by subject matter,
built upon logic - all designed to cast doubt on the opponent's theory
of the case, or to support her theory of the case. The one good
emotional aspect that flows from the "no discovery" witness is the
inevitable rush of adrenalin. It will make the cross-examiner quicker
and better able to do what needs to be done.
Logic Provides Safe Questions
A large portion of the reason why the cross-examiner feels
overwhelmed by this "no discovery" witness is that she has heard the
supposed axiom: "Ask no question to which you do not know the answer."
This misunderstood axiom leads to an absurd result: "Lacking discovery I
cannot guarantee what this witness will say to any of my questions,
therefore I cannot safely ask any questions."
This reasoning is wrong. There are more ways to "know" the answer
than by reading the facts in discovery. Even if the lawyer has no
discovery about this witness, she may well have discovery about much of
the subject matter of the testimony. She may be aided by the testimony
of previous witnesses and by her interviews of her own witnesses and
client. And without a doubt, she is aided by logic and common sense. The
trial lawyer may not "know" the answer in the strict sense that she is
equipped to impeach with a prior inconsistent statement, but she
certainly knows the logical answer, the logical facts that flow from the
witness's testimony, and the facts which logically must have led up to
the information just recited in direct examination. This is a hugely
more expansive field to work in, rather than the too confining (and
misunderstood) axiom above.
The cross-examiner can add to her cross-examination all the questions
to which answers are dictated by common sense. That is, the direct
testimony of the witness should have been in accord with common sense,
and the answers received in cross-examination should comport with common
sense. The risk of the common sense defying answer is borne by the
witness, not by the cross-examiner. Certainly, the witness can say
anything by way of an answer, but that does not mean that anything will
Identify Why This Witness is Being Called
What is the Goal of the Direct Examination? When the
opponent calls a witness who is unknown to the lawyer, the first
objective is to identify the goal of the direct examination. To what
purpose has the opponent called this witness? Obviously the opponent
believes the witness will support the opponent's side of the case. No
witness exists in the abstract. Each witness is there to add a specific
set of facts to the case. The cross-examiner need not fear witnesses who
are called for appearance sake, but who know little or nothing that
advances the opponent's theory of the case. It is exceedingly dangerous
to call witnesses merely to get a good face before the jury. Such
witnesses have little or no functional goals, and therefore have no
anchor to cling to during cross-examination. They are prepared on so
little of the case that they are actually far more vulnerable on
cross-examination when they can be taken into areas where they cannot
foresee how a particular answer helps or hurts their side's theory of
A witness takes the stand either to build the opponent's theory of
the case or to weaken the cross-examiner's theory of the case. The
direct examination will reveal this witness's specific purpose. The
cross-examiner's job is to identify the purpose and then analyze what
has to be done to further that purpose. Next, analyze whether the
witness can be taken into different areas to assist the cross-examiner
in her theory of the case.
The lawyer may discover that the principal purpose of a witness is to
bolster a point she had already concluded she could not successfully
counter or did not need to counter. The witness is new, but the
information is old. The opponent is just piling on. No cross-examination
on that issue is called for. To cross-examine on that issue is to fight
an unnecessary battle that the lawyer cannot or need not win. They had
one officer testify to the confession, now they have two. They had one
layperson describe the plaintiff's injuries, now they have two. If the
lawyer was prepared to cross-examine the first witness, the extra
witness adds little or nothing to the opponent's case. To the extent
that she has chapters that worked on the previous witness testifying to
the same area, those chapters may safely be used again. [Note:
"Chapters" are areas of cross-examination that are each a series of
goal-focused, leading questions. A successful cross-examination is a
series of goal-oriented questions whose logical form is chapters.
See Ch. 9 of the authors' book.]
The "Me Too" Witness. Many witnesses offer "me too"
testimony. Yes, his or her testimony hurts, but the judge and jury have
heard most all of it before. The cross-examiner is not going to need
many notes because the cross-examiner has heard it before as well. Those
chapters prepared for the other witnesses that preceded or that will
follow the "me too" witness are applicable to this witness. The
cross-examiner actually has a greater advantage than the witness in
these circumstances. The cross-examiner knows better than the witness
how the other witnesses have or will testify to the same events. While
listening to the testimony of this "no discovery" witness, the
cross-examiner will be mentally comparing the rendition of events from
this witness against the testimony of the other witnesses and the
documents that the cross-examiner intends to use with the other witness
for purposes of contradiction and consistency.
To this extent, the cross-examination of this "no discovery" witness
gives the cross-examiner an extra opportunity to contrast
inconsistencies between this witness and other witnesses. There is also
a greater opportunity with this witness, compared to other witnesses,
for the trial lawyer to highlight word selection and phrasing used by
this witness that may be more favorable to the cross-examiner's theory
of the case.
Prepare for Likely Topics
Assume the worst: the lawyer knows absolutely nothing about this
witness. The initial "discovery" must come from the direct examination.
First, analyze why this particular witness is being called. What purpose
does the opponent have for putting this particular witness on the stand?
Once the lawyer identifies the purpose for which the witness has been
called, she may well discover that she has prepared chapters on those
topics, believing them to be useful for a different witness.
In other words, she is prepared for a witness in these chapters of
cross-examination, but thought a different name would be attached to the
anticipated testimony. As an example, many times the cross-examiner is
prepared to cross-examine a certain relative of the opposing party in a
domestic relations case, but the opponent puts on a different relative
who has not been deposed and has not been interviewed. Similarly, in a
commercial case, the cross-examiner may be prepared to cross-examine one
of the attendees at a meeting, but the opponent decides to put up a
different attendee who has not been deposed.
In the criminal context, the prosecutor often calls a detective who
is not as prominently mentioned in the reports rather than the detective
who has previously testified in a preliminary hearing or motion to
suppress hearing in which the more prominent detective was
cross-examined. Because the cross-examiner was prepared for many of the
topics, the chapters prepared for one detective will generally work for
In each of these circumstances, the cross-examiner is prepared to
cross-examine the general species of witness and often can prepare
cross-examination chapters for most of the important topics. The
cross-examiner just is not going to be able to cross-examine the
individual witness she envisioned. But the cross-examiner is largely
prepared. The names of the witnesses may change, but the
cross-examination does not.
When the "no discovery" witness is called, those chapters prepared
for the general species of this witness should be at the forefront of
the lawyer's mind. Although they may not be a precise fit for this
witness they are very useful. In fact, they form the basis upon which to
actively listen to the direct examination and the basis on which to
modify our chapters of cross-examination for this witness. Each
individual witness is different and brings unique personality traits to
the witness stand. However, by being prepared for the generic species of
this witness (eyewitness, investigating detective, attendee at a
meeting, relatives and friends of a party, recipient of a memo, and so
on), the cross-examiner has preparation even though it might be said
that the cross-examiner has no discovery.
Continuing in June and July. Pozner and Dodd return
in June and July with a continuation of this three-part series on
conducting effective cross-examination without discovery. In June, Part
2 focuses on using direct examination as "discovery." The series winds
up in July with Part 3, focusing on conducting the-cross