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Essential Reading on Cross-Examination

By Charles S. Fax, Litigation News Associate Editor

 

When my grandfather, an attorney, died, he left me three precious possessions—the gold pocket watch he wore to court, the shingle that hung outside his office, and a well-worn volume by the legendary trial lawyer Francis L. Wellman, The Art of Cross-Examination (4th ed.), published in 1936. The pocket watch sits in a drawer, and the shingle on a shelf, but the book is always at my desk. For trial lawyers, Wellman’s is among the urtexts of cross-examination, containing essays written by Max Steuer, Emory Bruckner, Lloyd Paul Stryker, Joseph Choate Jr., and other luminaries of their day, analyzing in detail their notable cross-examination triumphs and failures.


Of course, those masters tried cases in the days before the Federal Rules of Civil Procedure, limiting the utility of their examples in modern times. Thus, in 1975, Professor Irving Younger caused a sensation when he emerged as the new Prometheus of cross-examination. He dazzled the profession with a series of taped talks on trial procedure—emphasizing cross-examination—based on lectures given to his Cornell law students. Younger brought current the lessons of Wellman and his contemporaries, synthesizing the modern art of cross-examination in his iconic “Ten Commandments.”


Now, 40 years later, a new bible on cross-examination has emerged, which not only captures the best of Younger, Wellman et al., but also improves on them. For all trial lawyers, the new text, edited by Charles B. Gibbons and titled The Art of Cross-Examination, Essays from the Bench and Bar, is a must-read.


Gibbons has collected some of the best essays on cross-examination published in Litigation journal between Younger’s time and the present and organized them thematically. Ingeniously, he begins with a reprise of Younger’s famous lecture on the Ten Commandments of cross-examination, followed by two chapters that presume the difficulty in remembering all 10, seeking to reduce them to their basics (one author postulates four commandments and the other, three).


Then Gibbons shifts gears dramatically, offering an insightful chapter in which Michael Doyen expertly argues the fallacies in Younger’s rules and their lack of utility in helping a modern advocate prepare and execute a competent cross-examination.
I found this chapter alone worth the price of the book.


Doyen argues that Younger’s thesis is built on two fallacious premises: that “competence” in cross-examination is a matter of adhering to his Ten Commandments and that only extremely gifted lawyers can master them. To the contrary, writes Doyen: “Following [Younger’s] rules will not bring competence, and the achievements of the masters are within our common comprehension. The false premises reflect a deeper mistake; the attempt to understand cross-examination without regard for the larger strategies of the trial.” The remainder of Doyen’s chapter develops his persuasive argument.


Much of the rest of the book addresses, in various ways, the goals, strategies, and techniques of cross-examination in the context of “the larger strategies of the trial.” Thus, there is guidance on “sizing up the witness” (David Berg); incorporating cross-examination into the trial strategy (Kenneth Nolan) and theory of the case (William Snapp); structuring a cross-examination that hurts the witness (Charles Faruki); the art of probing (Vance Barron Jr.); mastering a “blind” cross-examination (Mark Neubauer); framing loaded questions that further your theory of the case (Vance Barron Jr.); how to cross-examine an expert (Walter Lancaster); and effectively using depositions at trial (Lansing Palmer).


There are other chapters that provide technical guidance on virtually every problem that a litigator will confront on cross-examination. My favorite is a chapter titled “The Felix Frankfurter Problem: Cross-Examining a Former Judge,” written by Daniel Roach and edited by Christopher Lutz. I have cross-examined priests and nuns but never a former judge. I am comforted to know that if the occasion arises, this primer will tell me how to do it.


As is to be expected in an anthology of this sort, there is considerable overlap among some chapters—and conflicting opinions, as well—which I find very instructive. So this is not a page-turner. Rather, it is a resource to be consulted, when the need arises, by novice and expert alike. Both will glean new insights into their craft. I expect that in my remaining years of practice, this volume will become more dog-eared than Wellman’s


Keywords: cross-examination, Francis L. Wellman, trial lawyer, anthology, essays


The Art of Cross-Examination, Essays from the Bench and Bar (ABA 2014), available at the ABA Web Store or by calling 1-800-285-2221.


 
 
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