The Private Trial Attorney: Seems to forget that the responses to questions are for the jury, not the cross-examiner’s personal benefit. Cross-examiners of this strain inquires in a manner that excludes the possibility of active participation by the jurors. For them, it’s all about self. The questions emanating from attorneys caught up in their own little trial world sound like: “Can you tell me ?” “Just so I’m clear ?” “Tell me ?” and “As I take it. . .?” It would be just as easy for counsel to turn these questions around to provide facts directly to the jury. California law does not require employers to provide employees bereavement leave California or leave to attend funerals.
Jurors are neither bystanders nor courtroom furniture. Our trial system entrusts responsibility to jurors to decide cases, a tenet lost on counsel who gets so wrapped up in trial nuances to notice the decision-makers in the jury box.
The Legal Scholar: Forgets that not everyone else had the privilege of attending law school. The ivory tower trial lawyer uses huge words and legal language that fly over jurors’ heads at every turn. And it is not just the incomprehensible and obscure Latin stuff that occasionally spews forth from some Big Word counsel. In virtually every case there are complex, specialized, or trade-specific terms that easily roll off the tongues of the attorneys or witnesses but hit the courtroom floor without comprehension before they get to the jury box. Simplicity counts, especially when the direct testimony leaves open the meanings of important concepts or terms.
Effective cross-examination does not require the eloquence of a Clarence Darrow. But interrogation unburdened with legalese, legal jargon, and technical terms uncommon to regular folks helps make the most out of what a witness has to offer. For that matter, a helpful cross-examiner can score extra credibility points with jurors by supplying clarification and definition. Most critically, the main attraction is the witness, not the examiner. An effective trial attorney is a communicator who diverts attention from oneself to the witness’s responses, which is where the focus should be. Lengthy, convoluted questions drooping with long vocabulary words and unexplained acronyms (e.g., EKG, MRI, CFO, GAAP) detract from the coherence of the examination. The conventional wisdom is that fewer trials are won by attorneys who talk past or over the jurors’ heads than by those who speak plainly.
The Parrot: Violates the Younger rules for cross-examination by giving witnesses license to repeat, revisit and regurgitate direct testimony over and over again. Unless the direct examination totally favors the cross-examiner’s side (it rarely does), this is a large mistake that damages one’s own case. Such disastrous questioning often starts with something like, “Now you heard witnesses so-and-so testify that such-and-such, right? You don’t disagree, do you?” It is all downhill from there. The opponent’s facts or theories are given unnecessary extra advertising. The jury gets a double dose of the poison for which cross-examination is intended to be the antidote. This replication reinforces the opposing party’s veracity, and also gives a loquacious witness an opening to take a second swipe at the vulnerabilities of the home team’s case. At the same time, jurors may become irritated that counsel is wasting their valuable time repeating testimony that they have heard
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