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  • Wisconsin Lawyer
    March 31, 2008

    Practice Tips: 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.

    Wisconsin Lawyer
    Vol. 77, No. 5, May 2004

    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 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.

    Roger Dodd


    Larry 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 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 witness.

    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 be believed.

    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 the case.

    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 another.

    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 examination.

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