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Mastering the Blind Cross-Examination

By Mark A. Neubauer

Blind cross means bravely taking on the adverse witness with no prior testimony or discovery. No dress rehearsal at deposition. No lengthy witness statement or interrogatory response from which to quote.

The blind cross was born in the days before David Dudley Field and the Discovery Code, when lawyers like Abraham Lincoln literally rode the circuit courts on a railroad. Today, prosecutors and public defenders still are forced to master this art. So, too, are the multitude of lawyers who dwell not in the ethereal “bet the farm” case but in the day-to-day resolution of medium and small disputes in which most of us work.

But large-firm attorneys should not fear blind cross-examination. Not every witness needs to be deposed. Common sense and careful preparation can allow any skilled trial lawyer to effectively practice the art of blind cross-examination.

To be effective, blind cross must have a specific goal. More often than not, each witness in a trial is intended to lay out a specific fact or a set of key facts that help provide the premise for that side’s case. Cross-examination should be a laser beam designed to attack that side’s contention of that fact or set of facts. In short, blind cross-examination should be a stiletto, not a sledge hammer attack.

You cannot allow the witness to veer from achieving your goal, or to distract the trier-of-fact with extraneous evidence that you do not want admitted. You, and not the adverse witness, need to be the master of the examination.

The easiest way to control a witness is through the use of exhibits. Accordingly, use your documents to weave your testimony on blind cross-examination. What is the witness to do? Deny that he wrote the document? Deny that the document she wrote is a true statement? It almost doesn’t matter what the witness’s response is. What does matter is getting the witness’s own words in writing into evidence before the judge or jury.

For example:

Q: You wrote this letter, didn’t you?
A: Yes.
Q: And when you wrote that “I cannot justify paying so much for senior staff when we are missing our budget,” you believed that to be a true statement, didn’t you?

What is the witness to say? He lied when he wrote it? By reading the statement into the record, you are driving home its content in a far more effective way than by just authenticating the document.

The advent and indeed overuse of e-mails has made blind cross-examination through the use of documents even simpler, and the use of depositions almost superfluous. Witnesses do not talk to each other anymore. They merely e-mail each other. Hundreds of e-mails. Thousands of e-mails. We are drowning in a flood of e-mails, and they are all part of e-discovery. People spontaneously write e-mails without hesitation and, more importantly, without reflection or thinking.

All you have to do for effective blind cross is have the witness repeat what he or she wrote and then merely ask if the witness believes it to be a true statement at the time he or she wrote it.

Note the way I phrase the question—a true statement at the time it was written. Either the witness has to confess being a liar in writing an intentionally false e-mail or the witness has to acknowledge that he believed the e-mail to be true at the time written, regardless of the fact that a different truth dawned on the e-mail author later in the litigation or in the life of the dispute.

Here is a typical exchange of effective use of e-mails in blind cross-examination:

Q: Is this an e-mail that you sent on September 2, 2007?
A: Yes.
Q: When you wrote in that e-mail you were concerned about meeting the production deadline under the contract, that was a true statement when you wrote it, was it not?
A: Yes.
Q: You knew there had been a delay in the manufacturing process, didn’t you?
A: Yes.
Q: And that—to use your words—“concerned you,” isn’t that true?
A: Yes.
Q: In fact, you anticipated that the contract production requirements were not met, isn’t that true?
A: Yes.
Q: And that was the “concern” you wrote about in your e-mail, was it not, sir?

Here, it almost does not matter what the witness says. If the witness says, “No, I do not believe my statement was true when I wrote it,” then he is admitting he is a liar. His remaining testimony is not credible because common sense tells you the document represented what was true at the time it was written. More likely, confronted with the e-mail’s memorializing of the witness’s contemporaneous statement, the witness is bludgeoned into an admission of yes.

Accordingly, when you plot out your blind cross, go carefully through the documents, especially the e-mails. Lay them out like a long mosaic and weave them back together as you tell your story through blind cross-examination.

Often in blind cross-examination, you do not know the answer to the question. But when you ask about the obvious, it does not matter what the answer is.

The point of asking questions about the obvious is made with the question itself, not the witness’s answer. A common warning to witnesses is “never deny the obvious because then no one believes you on the close calls.” Keep that in mind as you draft this approach to blind cross.

For example:

Q: Now, sir, you knew there was a speed limit on that highway of 70 miles an hour, didn’t you?
A: Well, I wasn’t really sure.
Q: You knew there was a speed limit, didn’t you?
A: Well, yes.
Q: And you knew the speed limit was there for a reason, didn’t you, sir?
A: Well, I hadn’t given it much thought.
Q: And isn’t it a fact, sir, that the reason there was a limit to the maximum speed you were to drive is for the safety of not only you but everyone else on that highway?
A: I guess so.
Q: And you knew when you were driving faster than that speed limit you were being unsafe, isn’t that true?
A: Well I didn’t think it was unsafe. I thought I could still control the car.
Q: And you knew, sir, by exceeding the speed limit on that highway that rainy night, you knew that it exposed my client to risk of being hit?
A: I really didn’t want . . . I didn’t want to hit your client.
Q: The fact is, sir, you didn’t care, did you?
A: I did care. I just had to get there quickly.

You can see the point. By asking the obvious, it does not matter what the witness says. Everyone knows that the speed limit is there for a reason. Everyone knows it’s for the safety of not only the driver but others on the highway. And everyone knows that speeding results in a callous disregard for those around you. Point made. Cross-examination objective achieved.

No matter how much you prepare, no matter how much you review the documents and the e-mails, and regardless of how many possible answers you plot out to your questions, you will still be open to surprise in any number of forms during cross-examination. Sometimes terrible surprises.

But the key in blind cross is not to panic, no matter how tight your stomach is. When that surprise hits you, you cannot pause. Resist the temptation to fumble your notes or look up to the ceiling, praying for divine guidance. You only drive home that the witness has just stabbed a dagger into the heart of your case. By moving quickly, you distract the trier of fact as best as you can into some other area. Ask another question—quickly. Don’t worry about whether the question flows. Ask any question—keep the pace going and preferably in a different direction. By moving quickly, you can avoid the impact of the surprise answer sinking in. Indeed, by remaining in control, you can sometimes give the impression that the surprise answer was something you expected or even wanted.

Trials are theater. And, like a good play or movie, they require a strong ending. Blind cross-examination is no different. Pull a series of key questions out of their “logical” order and save them for the end. Have a zinger that lets you go out on a high regardless of whether you got tagged by the unexpected adverse answer. Often, after I finish my general anticipated course of cross-examination, I have a long segment where I deal with the areas that were brought up on direct examination by my opponent. It might go on for pages and pages, but at the bottom of my pad I always save a series of closing questions.

The purpose of these closing questions is to drive home your objective or goal. They should show the theme of why you examined this witness and why her testimony is favorable to your case and not to your opponent’s.

For example:

Q: The reason you were speeding is you were late for that party, correct?
Q: And getting to that party on time was more important than worrying about the safety of the plaintiff, wasn’t it?
Q: And that party was more important than life or death for anyone else, wasn’t it?

Again, these are a series of questions asking the obvious. It does not matter what the witness answers. Your point is being made by the questions. Your questions set forth your goal in examining the witness. The theme and the objective of the blind cross have been achieved.

So throw away those deposition transcripts. Save your clients thousands of dollars of reporters’ fees. Instead, cross-examine your witnesses the old-fashioned way—blindly, which, like Lady Justice herself, isn’t really so blind after all.

Keywords: Trial procedure, opposing counsel

Mark A. Neubauer practices with Steptoe & Johnson, LLP in Los Angeles, California, and is a former Editor-in-Chief of LITIGATION.

This article was excerpted from a longer one that appeared in Litigation, Volume 35, Number 2, Winter 2009 at page 23.


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