Monday, September 3, 2007

crossing the unarmed

What an interesting evening! Naw, no details. Best kept close. Suffice to say that I got to exercise my deepest cross-examination skills. Sometimes I really miss the courtroom.

I read Welling’s Cross-Examination, a classic from the 1940s, and Cornelius’ Trial Tactics from the same era. Good books, but such structure! Trial work is meant to evolve in front of you as an artist uses color – you don’t use red here to balance the yellow other there. That’s an insult to the creation. Ask a sculptor what that slab is going to be, and she will tell you, “I don’t know yet. It hasn’t revealed itself to me.”

That is trial work. All the preparation is just to ensure that you have a full palette with which to create. Let the trial reveal itself. DAs and USAs are asking questions and getting answers, but the infliction in the witness’ voice, the cast of the eyes, the involuntary body movements are what give depth to the testimony. Who cares if the poor bastard has hemorrhoids? He looks uncomfortable in the witness chair, so turn that to undermine his credibility. Such physical unease surely belies a moral unease with his words given under oath. Primary colors are for pussies.

I recall a trial where a cop knew she was looking bad. I had her original report, her previous testimony, and a map. I saved the map, didn’t even show it for the first half of cross. Then I brought it out. She looked at it with disdain, as if it were a prop. I loved that map. I took her step by step through everything she wrote and said. Little tiny itzy bitzy piece by little tiny itzy bitzy piece. I knew before I set her up during the first part of cross that I had her nailed. As the map came out, and I started to pull the threads together of everything she had committed to into this wonderful mosaic, she knew she was looking bad. So bad, in fact, that she began to make stuff up. I smiled sooo big!

I didn’t have to call a recess. I looked at the DA and he did! By the end of the day, the DA had withdrawn the charges and referred the issue of the cop’s testimony to the AG’s Office for a perjury investigation. A week later, the jurisdiction that employed the cop had issued a check to my client for all of my legal fees, including the cost of the map.

My client – who I knew from high school – was clearly guilty. No doubt in anyone’s mind. He walked to recidivate on another day! What a great country! I still have that map somewhere.

I remember a story, a true story, about Abraham Lincoln from his trial days. He represented a railroad in a wrongful death case. He had the night watchman on the stand – a friendly witness. He asked him if he had seen the soon-to-be decedent on the tracks. He agreed that he had seen the man walking towards and then on the tracks. He was asked if he shouted to him. He said that he had shouted to him, but that the noise of the trains cloaked his screams. Did he try to get the man’s attention in any other manner, came the next inquiry. Yes, the night guy said, he waved the lantern to and fro – it was the only other means available. The train was reversing and it was not possible to get the horn to sound in time. It seems the man did not respond to the waving lantern and was promptly made one with the tracks underneath the train. The night watchman’s testimony stood well under cross.

Outside the courtroom, after a verdict for his client, Lincoln was asked about the night guy’s testimony. “It’s a good thing that on cross-examination,” Lincoln said, “that opposing counsel did not ask if the lantern was lit.” Gotta love Abe.

Cross is just the coolest thing. I should read some of Gerry Spence’s books. Good man, great attorney.

No comments:

Post a Comment