Trial lawyers are separated into two classes: those who can cross-examine and those who cannot. When a witness finishes testimony to the lawyer who called, there were no direct questions allowed. The witness' lawyer cannot put words in the witness' mouth. Opposing counsel, in cross-examination, is not only allowed to do so, but is expected to zero in with a slam-bang attack to destroy the impact of the testimony just heard, and then stand back as a wilted, forlorn witness limps from the stand. Oh! Yah? That's a rare one. Been there. Done that. Lost big.
The best cross-examination I have ever made in 40 years of trial practice was to rise, look the jury right in the eyes, turn to the witness and offer the same direct eye contact, and end at the Judge, to whom I offered a bow of the head, "May it please the Court, we have no questions to ask of this witness." And sit down.
The witness then speaks without words in the stark silence of body language. Tense, rigid, waiting for hostile lawyer to pounce and pound, the witness goes into a state of shock, eyes bulging, mouth dropping open, and slowly, yet irrevocably, letting every muscle and nerve grow as loose as wet spaghetti falling over the caldron when cold water was poured into it to stop the cooking process. Ever see a balloon deflate slowly? Not the pinprick with a bang. Slowly, like the ooze of a hot-air balloon, going Phoooffff! -- when the gas-burner is turned off.
Then -- not over yet – the befuddled witness, so eager to fight for what is right and true and just, as testified, is now without words, lost the audience, too, and has no retreat but to extricate limp rag-doll body from the stand, somehow, and make an interminable walking journey from stand to courtroom door. Everybody in that room is watching. Even the Judge, who catches herself, at last, breaks the pained silence of the room and asks the poor lawyer who put that witness on, "Your next witness, Counselor?"
The second best – yup, there's more, as usual, but just this one – is my all-time favorite. No cross. No attack. No browbeating. No intent to confuse, contradict, destroy. No prior testimonies to brandish when inconsistent with the one just delivered, either. Not even a 20 year old conviction for perjury, certified copy, too. Just a friendly, "Hello, there, Mr. or Ms. Witness, let's continue, shall we? May we hear more, please?"
After some years of trial practice, the densest among us begin to see that dangerous witnesses can best be destroyed by allowing them to destroy themselves. Let them talk. On and on. Let their body language speak louder than their words. Stand at the far end of the jury box, a distance away from the stand, giving the witness free space in the illusion of room, but also forcing that witness to talk to, over, through the entire jury box to the lawyer at the other end. Keep the focus on the witness' end of the box. Be as invisible and as quiet as a lawyer can be. Hard, I know, but it happens. Ask as many leading questions as possible, just to get the witness talking and talking and talking. Egg the witness on. The usual crisp, tight cross questions demand short, stern answers. Leading questions urge a witness to launch out into orations. And that is where the true person is seen, in all its truth or deceit.
For example, on pitbulls, ask leading questions: "Ma'am, would you expand on the cosmetics worn by hockey moms a little more, please. Their eyes, for example, loving and kind, latched Palin glow, gleam and pour out all the right wing stuff that Moms must defend their young against predators and sex maniacs, especially Democrats, all of whom are inexperienced and never laced on a pair of skates, anyway.
Don't give into the hostile lawyer's pitiless streaks, lurking inside most trial lawyers, and play around with "Pitbulls are licensed, aren't they? Are you?" Or, "When off-lead pitbulls savage little kids on sidewalks, chew up their pretty little faces, their owners are held responsible under the law, right? Who holds your lead? Ever get loose, Ma'am?"
That's crass and will, as always, turn the jury against the lawyer asking the question. Such a cross will also transform the witness into a Joan of Arc, ready willing and able to fight and die for her beliefs, protecting the young, putting her country first.
Were my advice sought on how to handle Governor Sarah Palin, it has to be: Don't.
Let her talk and point her accusing finger. Pitbulls, with or without lipstick, have a way of destroying themselves, particularly when left alone to be what they intrinsically are.
This campaign could be as entertaining as a Perry Mason re-run . . .
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