Trial Skills Boot Camp on Cross Examination
DAYL Offers Litigation Tips Though Experiential Learning
June 05, 2019 at 09:27 AM
5 minute read
With so few cases going to trial these days, attorneys are finding it increasingly difficult to obtain actual courtroom experience. Developing the skills required to represent clients in trial can be particularly challenging for young lawyers. Five years ago, the Dallas Association of Young Lawyers (“DAYL”) Trial Skills Committee started a one-day “boot camp” aimed at offering a solution to this problem. The Trial Skills Boot Camp is now an annual CLE that provides experiential learning for young lawyers by following a fact-pattern and providing an opportunity for young lawyers to practice a skill (e.g. opening statement, voir dire) and receive valuable feedback by seasoned attorneys and judges. As Judge Martin Hoffman, 68th District Court in Dallas County, explains, “many young litigators do not have the opportunity to try jury trials. This is one of the few programs that actually allow young lawyers to practice trial skills in front of real judges.”
The event has proven to be an incredible success, with each year featuring over 100 young lawyer participants, 20-plus seasoned critique lawyers, 10-plus judges and some amazing speakers. Co-Chair Debrán O'Neil reflects, “Young lawyers really enjoy learning from top-notch panelists during their mock examinations, and then getting to put those skills into practice in front of judges.” Given the tremendous response to past events, last year the committee expanded the program to encompass one-hour CLEs that incorporate the same hands-on learning approach and utilize the same hypothetical. This year, the programming includes two CLEs, which further expand upon this year's subject—witness examination—and are designed to provide more holistic training.
The following is just a sampling of a few of the lessons learned at the April CLE on preparing for witness examination and tips/techniques that will be explored at the upcoming June 8 Boot Camp:
Outlining your examination—begin and end with your strongest points. Due to availability and perception biases, jurors pay most attention during the beginning and the end. Capitalize on this by sandwiching your weaker points in the middle.
Control the witness by getting concessions first. Start with some easy points you know the witness will agree with you on. Establishing common ground early tends to make the witness easier to control.
Come prepared to use their prior testimony. Did opposing counsel stretch the truth during their opening statement? Make a record and use it against their witness on cross. Did the witness contradict their deposition during direct exam? Cite it and be prepared to impeach if necessary.
Be prepared to adapt. Practice thinking on your feet. “I hope participants learn to think creatively, not just critically. Cross examinations are the most successful when you think creatively to negate the other side's preparation of their witness,” says Monica Gaudioso, DAYL Trial Skills Committee Member.
Build your case one brick at a time. Whether your goal is to cast doubt on their credibility or expose the inconsistencies in their recitation of the facts, your approach is the same—ask short, simple, leading questions centered around one fact that requires a “yes” or “no” answer. A successful cross looks nothing like what we see in the movies. There really are no “Perry Mason” (or “Elle Woods” for us millennials) questions—that in one swift stroke unravel the other side's argument. Unfortunately, those questions will almost always leave you with an evasive and sometimes embarrassing answer.
Practice on live resistance. Cross examination is a difficult skill to master. If you can't make the Boot Camp, enlist the help of your colleagues, significant others, family, or friends. Keep in mind, most jurors are not lawyers. Witnesses with no legal experience will give you a better idea of what to expect and can also provide you with crucial feedback on how you may be perceived by the jury.
Program Overview
The program kicks off with a panel discussion and live demonstration of cross-examinations. Then each participant is assigned to a courtroom where they have the chance to test their cross-examination skills on a live witness before a sitting Dallas judge and two seasoned trial attorneys. In the afternoon there is a panel and live demonstration on expert examination.
October 23, 2019, CLE on Effective Direct Examination
This presentation will provide practical guidance on how young attorneys can structure their clients' direct examinations to effectively convey critical facts and themes while managing time and keeping the jury engaged. The speakers will conduct a mock direct examination to showcase techniques to avoid the runaway witness.
Chelsea Hilliard is a Dallas-based attorney at Foley & Lardner with an extensive litigation practice focused on securities enforcement and complex commercial matters. She is also a dedicated member of the Dallas Association of Young Lawyers and currently serves as co-chair of its Trial Skills Committee. Zain Pleuthner, law clerk, and Alex Risinger, associate at Sommerman, McCaffity, Quesada & Geisler, assisted with the drafting of this piece. Both are members of the Trial Skills committee.
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