Vol. 77, No. 6, June 2004

Dodd & Pozner on Cross-Examination Without Discovery, Part 2:
Using Direct Examination as 'Discovery'

by Roger Dodd & Larry Pozner

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.

In this second 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 techniques for using direct examination as "discovery." [Ed.]

Note Taking During Direct Examination

Focused Listening. When the cross-examining lawyer lacks discovery and the direct examination testimony is previously unknown, oftentimes the trial lawyer tries to compensate by writing down as much of the direct examination as possible. This is a natural reaction. Since the lawyer on cross-examination had no prepared chapters, she compensates by taking more notes. More notes = more discovery = more preparation for cross-examination, or so the thought process goes. But the trial lawyer cannot effectively listen, observe, absorb the new material, and consider the impact of this witness on the fact finder, all while writing copious notes. The value of lots of notes is almost always less than the value of focused listening accompanied by selective note taking.

Selective Note Taking. The cross-examiner does not need to "learn" the entire direct examination. In almost all circumstances, the trial lawyer is concerned with only parts of the direct-examination, so encyclopedic notes are not productive. Only selective notes are required. The decisive questions are: 1) which areas are worthy of note taking; and, 2) how to actually take those notes. When faced with the task of cross-examining the witness without aid of pre-trial discovery, the cross-examiner takes selective notes solely to assist in the cross-examination or occasionally, the closing argument.

Taking Notes in a Chapter Format: One Chapter Per Page. A pivotal issue for the cross-examiner is how to effectively take notes during the "no discovery" direct examination.¹ There are several useful systems. To be useful, any note-taking system must be efficient, meaning it must produce notes of immediate use in forming cross-examination chapters without inordinate time or effort.

One easy system for efficiently tracking the direct examination is to take notes in a chapter form.²

Most direct examinations are conducted chronologically. Opposing counsel can be expected to take the witness chronologically through whatever topics the witness is expected to support. The opponent may not realize it, but this pattern approximates the chapter method of presentation. As a result, the cross-examiner has the ability to follow and organize the direct examination for note-taking purposes.

In this system, effective note taking of a direct examination is a paper-intensive process. The cross-examiner is going to need a lot of paper, but she is not necessarily going to take a lot of notes. For some unknown and ill-conceived reason, trial lawyers try to put as many notes on as many topics as possible on one sheet of paper. The result is a hodge-podge of note-crammed pages relating to every issue or topic raised on direct examination. This is not a system. It is a recipe for frustration. Random junk notes are not in a form to be immediately useful in preparing cross-examination.

In using the chapter method of cross-examination preparation, the lawyer has grown accustomed to the fact that every cross-examination chapter deserves a separate page. No chapter will exceed a single page. Each chapter will be contained on the front side only of the page.³ There are good reasons to use the same system for note taking during every direct examination and especially during the direct examination of a witness for whom there is no discovery. For starters, one system is better than two systems. A single system is far easier to work with in times of stress.

When faced with a "no discovery" witness, the cross-examiner needs a blank note pad. As the direct examination proceeds, the cross-examiner breaks down her notes of the direct examination into chapters. All notes on one chapter are on one page. On that page the cross-examiner notes potential issues for cross-examination. What the cross-examiner needs most is not a full rendering of the direct examination, but only the key testimony on which to cross-examine, and the cross-examining lawyer's thoughts on what to do. Undoubtedly, the cross-examiner's notes on a single chapter will not fill the entire page. They will be truncated: abbreviated. But each chapter will be on a separate page. Leave the partially filled page as is. Lawyers should prepare their chapters of cross-examination one chapter per page to avoid confusion and make sequencing easier.⁴ Notes taken in the same system afford the same advantages.

Why only put one chapter on a page? Why label the chapter name at the top of the page? Remember, some of these notes may prove useful in the cross-examination of other witnesses who are hours or days away from being called.

The problem with noting more than one chapter to a page is that the cross-examiner is led into cross-examining from a page of notes that relate to many chapters. That will inevitably cause the cross-examiner to follow the chronological order used by the opponent in conducting the direct examination. Chronological order almost always is a mistake on cross-examination.⁵ One of the biggest risks of following a strict chronological approach based on a page of notes taken during direct examination is that the cross-examiner will inadvertently wander into areas on which she never intended to cross-examine. Trying to cross-examine from a page containing notes on many chapters also leads the cross-examiner into a series of one or two question chapters. In other words, when the cross-examiner is looking at the one or two points she had time to write down during direct, she is led to think these are the only points worth making. One chapter = one page = one system = less confusion = more control.

Note Ideas for the Potential Cross-examination. When the lawyer takes selected notes on the direct testimony of a witness, she is writing down what the witness said. But the testimony of the witness is not a cross-examination. It is but a starting point. The notes tell her what was said, but she is left to develop a plan on how to use this information. She needs techniques that move her beyond the direct examination into the possibilities for her cross-examination. In moving from her notes to her cross-examination, she must recall that her cross-examination is not limited by the exact chapters covered by the direct examination - she is free to cross-examine on any area or topic raised by the direct examination. It is entirely conceivable that her cross-examination will cover facts never discussed anywhere in the direct testimony. After all, the direct examination was designed to tell the opponent's best story, not the entire story. The direct exam was designed to leave out entire sections of the case, and to omit harmful material even in the areas that were covered. It is the cross-examiner's job to add, to bring out new areas deserving of consideration, and to weaken, where possible, the points made by the opponent in direct-examination.

In addition, the motive, interest, or bias of a witness is always a fair subject for cross-examination. As the cross-examiner listens to the "no discovery" direct examination, she can add her own notes on motive, interest, and bias. The trial lawyer may not have known who was to be called, or what they would say, but once called she may well spot their motive, interest, and bias. The credibility of every witness is at issue and therefore is fair game for cross-examination. The witness may have testified to things he or she could not know, or to things that are both incredibly helpful to the opponent while being incredibly unlikely. Testimony that defies logic, the physical laws of nature, or common sense deserves to be cross-examined. In short, notes of direct examination do not mark the bounds of potential cross-examination. It is only a part of the whole.

The cross-examiner's notes of the direct examination were taken in chapters. So the notes on the lawyer's thoughts belong on the same page as the direct examination that spurred the lawyer's thoughts. Almost immediately after writing the notes, she will need to use them, as it will be her turn to cross-examine the witness. So what does the cross-examiner write in her cross-examination column?

1) Note chapters that can safely be emphasized.

2) Note chapters left out of the story that counsel can have the witness admit.

3) Note entire chapters that the witness will admit, even if not part of the witness's direct examination.

4) Note logical inferences; since the witness said X, he must admit Y and Z.

5) Note contradictions with the facts, circumstances, witnesses, exhibits.

6) Note facts relating to motive, interest, or bias.

The Testimony Begins: Keying-in on Voice Tone

Tone Is Important. One of the critical assessments that the cross-examiner must make of each witness is the tone of the answers the witness gives. Whether or not there is discovery, the lawyer is always aware of the witness's tone of voice. Tone of voice gives her insight into the witness's mind and when she has no discovery, she needs all the clues she can get. Tone often schools the trial lawyer on the witness's confidence level. Is the tone assured? Is the tone objective? Is the tone laced with emotion? Is the tone uncertain? The lawyer can better understand the degree that this witness feels tied to the opponent or to his own story. The lawyer can thereby better judge the degree of flexibility the witness is likely to demonstrate. She begins to learn why the witness is here. She can now better understand the role the witness is expected to play by the opponent.

The witness's tone can be an incredibly important clue to the cross-examiner. Listen for voice tone changes as the direct examination proceeds. Some parts of the direct will sound as though they have been rehearsed. The lawyer may easily detect areas where there is a certain assuredness in the witness's tone. The cross-examiner learns from this tone where the witness is within his testimonial zone of comfort.

The Less Confident Tone as a Guide to Cross-examination. The starting place is the witness's tone of voice betraying the witness's lack of confidence in an area. Almost every witness changes his tone when he becomes less confident about the subject matter of the questioning. This tone change often occurs when the witness is led into areas in which he does not want to go, or the witness unintentionally strays into areas where he did not want to be. When the trial lawyer hears this change of tone, she understands it as a signal that this area may be a fertile area for cross-examination. Wherever she picks up on a change of voice, it is vitally important that she focus on the witness, not on her note pad. Whenever a witness betrays in any manner a lack of confidence in his testimony, the cross-examiner should be especially observant of the witness's word choices, hesitation, and mannerisms. It is when the witness lacks confidence in an area that the lawyer is most likely to hear the "oops" testimony - the admission of confusion, the nonsensical assertion, the fact that does not logically fit. Perhaps the witness is in an area he does not want to discuss in detail. Perhaps his own uncomfortable role in the case is about to be revealed.

The Confident Tone as a Guide to Cross-examination. A confident witness tone in a particular area of testimony gives equally valuable information on areas of potential cross-examination.

How can very confident, direct testimony in an area be a guide to important and successful cross-examination? The answer lies in the immediate analysis of how that particular testimony impacts the two competing theories of the case. A witness may offer up information (whether or not sought by the direct examiner) which either directly aids the cross-examination theory of the case or which directly weakens the opponent's theory of the case. The cross-examiner, recognizing the witness's tone of certainty, may on cross-examination guide the witness first into a repetition of the useful material and then an elaboration of the topic. This cross-examiner's technique can be done in relative safety, even without benefit of pre-trial discovery. The confident tone ensures cooperation on cross.

Taking Cues From the Tone of the Examiner. The cross-examiner can also receive important clues from the tone of the opponent conducting the direct examination. When the tone of the lawyer conducting direct examination betrays a lack of preparation or confidence, it is a sign for the cross-examiner that the script of the direct examination is uncertain, is not being followed, or is fraught with hazards for the direct examiner. The opposing counsel's change of tone is often attributable to the fact that the direct examiner knows that there is danger in asking questions in this area because the witness may not be supportive. Alternatively, the direct examiner may not know how the witness is going to answer questions or what details he will supply in areas where only the general answer is known. Once again, this is fertile ground for possible cross-examination. The cross-examiner must carefully listen for nuances in tone of the lawyer conducting the direct examination.

Testimony That Conflicts with Testimony of Other Witnesses

The "extra" witness who is called to do nothing more than bolster another witness may well provide opportunities for effective cross-examination. First, has the witness said anything at variance with the other witness called by the opponent on this point?

It is the rare witness who can testify about the entire case. Rarer still are "no discovery" witnesses who can testify about the entire case. Almost every witness is a niche witness. That is, he can testify about single events or issues. His testimony will not span the entire case. Most witnesses assume that if his testimony "sounds good" for "his side," it must be assisting his side. The flaw in this reasoning is that testimony can sound good but actually be quite harmful to the opponent. This occurs because cases are almost always far more complex than any one witness can envision. The testimony that protects one issue may simultaneously assist the cross-examiner on another issue.

The niche witness will instinctually protect his niche, his testimony, what he has to offer. While the witness is trying to protect his testimony, he may testify to facts that may be destructive or contradictory to other niche witnesses, without realizing that he has done damage to the lawyer who has called him on direct examination. There is a technique to spot and exploit this weakness: Listen for areas in which the witness is at odds with another witness called by the opponent. In cross-examination take this witness back into that chapter and cross-examine him so that he repeats the portions of testimony that are at odds with testimony by another one of the opponent's witnesses. This technique effectively attacks the credibility of both witnesses, each without a clue as to why their testimony is being reinforced by the cross-examination.

The Overly Precise Question

Is opposing counsel asking a very precisely worded question? This is often a signal that this lawyer and the witness have agreed that the witness can truthfully and safely answer the question if, but only if, the wording is very precise and very narrow. What is not being said may be very apparent to the cross-examiner, who may reveal the misleading nature of the direct testimony by pointing out the very narrow nature of the opponent's question, and then using a series of leading questions that flush out the hidden facts. Look for this most often with expert witnesses.

Dodd

Pozner

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 America.

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 article is excerpted from Chapter 31 of Cross-Examination: Science and Technique by Larry Pozner and Roger Dodd (Lexis Law Publishing). Due to space, the material has been heavily edited. This series will conclude in July with Part 3.

Fact Fumbles

The cross-examiner is, of course, listening for the fumbles. Where is the answer that catches the direct examiner by surprise? When the cross-examiner hears or sees the surprise, she needs to immediately focus on the precise question and the precise answer it produced. The opponent is now in trouble and she must silently observe what facts can assist the cross.

Most direct examinations, by nature, appear less goal-directed than cross-examination. Direct examination must be conducted using open-ended questions. As a result, direct examinations can more easily meander or go off on a tangent because of miscommunications between counsel and his witness. Facts that support the cross-examiner's theory of the case or hurt the opponent's theory fall out and the listening cross-examiner must pick up on them and build chapters based on these fumbles.

Answers That Veer Off Course

A direct examination can appear to go off on a tangent. This usually happens either because the examining lawyer has taken the witness into unrehearsed territory or the witness has answered a direct examination question unresponsively. The direct examination also may go off the script when the witness continues to testify after the initial question has been answered. These occurrences are some of the most revealing times of the direct examination for the cross-examiner. The cross-examiner may recognize when this is happening by the words being said, or the tone exhibited either by the witness or the direct-examiner, or by the facial expressions of the witness or the direct examiner.

The unexpected tangential information and the proffered details that a witness gives to the direct examiner may well open up areas of cross-examination. These new areas of cross-examination can undermine the general impact of the direct examination just concluded. This happens because the jury has witnessed the direct examination go astray. They realize there was a slip-up or something that did not fit, and when the cross-examiner takes advantage of the slip-up by pulling out more information in that area, the jury highly values this information. In essence, the testimony becomes more important because it leaked out. Listen for the details that are volunteered.

An example: The plaintiff has sued the defendant for damages arising out of personal injuries suffered in a car accident. The defendant's vehicle hit the back of the plaintiff's vehicle at a stoplight on a road that had a moderate slope. From the plaintiff's point of view, she was "slammed into" as she sat at the stoplight. From the defendant's point of view, she "drifted into" the plaintiff at "idle speed." Defense counsel seeks to minimize the impact. Because the slope of the road would affect the speed of the "drift," the plaintiff's lawyer had conducted an on-scene investigation that included the exact degree of slope of the road.

The defendant calls an eyewitness in an attempt to show that this was a low-speed collision. The plaintiff had not deposed this witness because of the expense relative to the size of the likely damages. The effort to interview the witness had been unsuccessful. When called by the defendant, the witness testifies that the collision was not a substantial collision. On direct examination, the opponent asked the witness about the speed of the defendant's vehicle when it collided with the rear end of the plaintiff's vehicle.

"Q. How fast was Mrs. Rupert's car (the defendant) traveling?

A. Not too fast. The road is pretty much flat there at the light and she really just drifted into the plaintiff's car."

At this point, defendant's counsel has received the answer he was seeking - the defendant's car "drifted" into the rear of the plaintiff's car. But the witness has added an unasked fact: the slope of the road. The witness has testified erroneously concerning the slope of the road. Her tone was more hurried, but not dramatically so. Some damage has been done, but the misstep should be further exploited on cross-examination.

The cross-examiner heard the words concerning the slope of the road and also noted the abrupt shift of subject matter and the change in tone and pace of the direct examiner's words, and realized that this chapter concerning the slope of the road would be productive on cross-examination. This "no discovery" witness can be safely and easily asked now about "the road is almost flat there." A way to spot the miscommunication: The issue is not tied up by the opponent. Instead the matter is dropped.

When the Lawyer Interrupts His Own Witness

The cross-examiner often sees interruptions by the examining attorney as he attempts to steer the witness back into safe or rehearsed territory. It is important to object to any such interruption that cuts off an answer. When the cross-examiner knows the opposing counsel is uncomfortable in an area, she needs to give the witness more room to deliver damaging material. This interruption was designed to protect the lawyer. By allowing the witness to continue, the cross-examiner potentially opens up further areas for cross-examination.

There are at least two lessons to be learned when the direct examiner interrupts his own witness. First, and most obviously, is the lesson that the witness had either intentionally or unintentionally wandered into an area that the direct examiner did not want to pursue in direct examination. This tells the cross-examiner that this is an area that should be considered for cross-examination.

The second and less obvious lesson is that this is an opportunity for the cross-examiner to observe how the witness reacts to an interruption. Does the witness talk over the interruption? Is the witness submissive to the interruption? Is the witness frustrated by the interruption? Is the witness embarrassed that he has gone into an area into which the lawyer did not want him to go? All of these factors tell the cross-examiner which of the many methods available to control the runaway witness would be most effective in dealing with this witness.⁶

This is often an overlooked lesson. Direct examination allows the cross-examiner to "go to school" on how best to control this witness. Assess the witness continuously to determine which method or methods available to control the runaway witness will work best if these are needed in cross-examination. Assess whether this witness is someone who is determined in wanting to say what he came to say regardless of what is being asked. Or, to the contrary, is this a witness who does not object to being confined into any area selected by the examiner? Is this a witness who will allow himself to be regimented back into areas that the lawyer wants to explore? The cross-examiner's understanding of the tenacity and personality of the witness arms her for the cross-examination.

Spotting and Exploiting Gaps in the Direct Testimony

Follow the Chronology. Most direct examinations are conducted chronologically. Most trial lawyers adopt this form of direct examination because it is easier to convey the information, and a chronological story assists a fact finder who is unfamiliar with the story.

By moving through chapters of direct examination in chronological order, opposing counsel has also made it easier for the cross-examiner to follow and analyze the direct examination. The cross-examiner is better able to spot the gaps in the story. Is the witness skipping over certain information? Is the direct examination lawyer encouraging the witness to quickly move over some part of the story? Is there an event that logically should be talked about but which is being skipped? These are the kind of questions that the cross-examiner, who is actively listening to the direct examination, should be asking herself.

There are at least six types of gaps. As the direct examination progresses, the cross-examiner should be attuned to listening for each.

Gap 1: Conspicuously Missing Event. The most obvious gap is one in which there is a complete gap in the chronological presentation by the direct examination. As an example, a prosecutor was conducting the direct examination of a state trooper involved in the stopping, questioning, and testing of a prospective driving-under-the-influence arrestee. Methodically, the prosecutor took the state trooper through the reasons that the officer had activated his blue lights and stopped the vehicle. Methodically, the prosecutor took the officer through the initial contact with the defendant. Then, in one question, the officer is focused beyond the tests:

Q. What did you do after the defendant exited his vehicle?

A. I had him perform a series of field sobriety tests.

Q. After the field sobriety tests, what did you do?

The prosecutor then developed the handcuffing and arrest procedure. He covers the reading of certain rights. He takes the officer chronologically through the balance of his contact with the defendant.

The gap concerning the field sobriety tests suggests an opportunity for the cross-examiner to develop a productive cross-examination. The gap was created in the direct examination for a reason by the opponent. If the opponent thought there was good news in the field sobriety exam, the cross-examiner likely would have heard that testimony.

Gap 2: Lack of Details Gap. Similar to, and as a subset of, the "complete gap" is the "lack of details" gap.

In a medical malpractice case, one of the operating room nurses testified in great detail, including to the tenth of a milligram, to the administration of certain medicines to a hip replacement patient. She testified to the exact size of the orthopedic reamer/drill, as precisely as to the exact millimeter. However, when she was questioned on direct examination, she testified that a "small amount" of synthetic bone was placed in the hip. As to this part of the surgery the witness was asked nothing and offered no details. No exact measures, in fact, no discussion. The plaintiff contends that this "small amount" of synthetic bone is one of the reasons that there was no in-grow of the hipbone into the orthopedic device.

As soon as the cross-examiner notices this gap in the details, it becomes a potentially productive area for cross-examination. The witness omitted the details for a reason.

Gap 3: Gaps in Timing of Questions. The tuned ear of the cross-examiner must be aware of the cadence or speed of questions and answers in direct examination. When there is a substantial increase in the cadence or speed of questions by the direct examining lawyer, this is a type of gap in the testimony. The direct examining lawyer is signaling to the witness to go faster in this particular area. This is frequently a tip-off that this direct examiner has concerns about this area of testimony.

On the other hand, when the direct examiner reduces the speed of the questions, the cross-examiner must be attuned, not only to the speed, but also to the tone of the reduction of the speed. This slowing of questions on direct examination may be intentional by the lawyer conducting the direct examination. The direct examination lawyer may be emphasizing this material through the creation and use of silence.⁷

If the reduced speed of questioning causes the witness to testify in greater detail, the cross-examiner has likely discovered the strength of the witness and the primary reason she was called to testify. This also signals to the cross-examiner that this is where the witness is most prepared.

However, if the tempo of questioning slows down and the tone of the direct examination lawyer becomes less confident, that may well signal to the cross-examiner that the direct examination attorney is unsure of or concerned about the responses of the witness in that area of the direct examination. The cross-examining lawyer's tendency is to cross-examine on the speed rather than the solution. If the opponent hesitates when dissecting X - why? In each case, the speed or cadence of the questions has to be examined intently by the cross-examiner for possible inclusion in the cross-examination of those chapters.

Gap 4: Stories Told Out of Order. The cross-examiner should be conscious of where, at what point, the direct examination begins chronologically. The direct examination, after introduction of the witness to the fact finder, should start where it is easy for the fact finder to follow the testimony. When the direct examination attorney attempts to ignore facts, statements, or events that happened earlier than where the direct examination begins, it is an effort by the direct examination attorney to steer the witness away from those earlier facts and events. The cross-examiner must mentally process the previous testimony of the witness and the testimony of other witnesses on this point and events for potential chapters on cross-examination.

Gap 5: An Illogical Stopping Point. The cross-examiner also must listen for whether the witness stops testifying, but the story keeps going. Does the testimony stop abruptly? Does the testimony stop before the logical end of the story? These occurrences signal to the cross-examiner that there may be potentially successful cross-examination chapters that post-date the testimony on direct examination.

Gap 6: Covering the Entire Time, But Not the Entire Story. Perhaps the subtlest of gaps on direct examination occurs when the witness or the direct examination lawyer intentionally omits issues or events that occur simultaneously with those events to which the witness is testifying. An example: A witness gives direct testimony about a workplace confrontation in a hostile work environment case. The witness is able to reconstruct through his testimony that he heard the defendant yelling at the plaintiff (Bobby). The witness testifies in some detail as to the defendant's words, tone, and volume during this confrontation.

The cross-examiner noted that the witness was never asked nor did the witness volunteer about what the plaintiff, Bobby, had said. There was no testimony about the words that Bobby used, the responses Bobby made to the defendant's comments, the tone that Bobby used, or the volume that Bobby used. There was no testimony about Bobby's utterances at all. The cross-examiner mentally bookmarked and made a brief note on this gap on the issue of what Bobby had said for prospective use on cross-examination.

Whenever there is a gap in the testimony of the witness on direct examination, that gap is normally one that may produce favorable cross-examination material. Listen for the gaps in direct. Some gaps are witness-created. Others are direct examiner-created. The gaps in the direct testimony are often where the cross-examiner may produce favorable cross-examination material.

Endnotes

¹Larry Pozner & Roger Dodd, Cross-Examination: Science and Technique (Lexis Law Publishing), Ch. 10, "Page Preparation" (trial notebook page layout; discussion of how to take notes during trial).

²Id. at Ch. 9, "The Chapter Method of Cross-Examination" (structure, makeup, content of chapters of cross-examination).

³Id. at Ch. 10, "Page Preparation."

⁴Id. at Ch. 11, "Sequences of Cross-Examination."

⁵Id.

⁶Id. at Ch. 15, "Controlling the Runaway Witness."

⁷Id. at Ch. 23, "Creation and Use of Silence."

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