Friday, March 16, 2012

Rule #14: "Never Ask Why on Cross Examination"

There are exceptions to every rule. But for the young criminal defense lawyer (one with less than 10 years experience) there's no exception to this one. Never ask why on cross examination! The witness on cross examination is typically adverse to your position in the case. Asking "why" gives them open season to gut you in front of the jury and a bunch of other people you don't know. Very embarrassing. 

The object of a good cross is to compel the witness to admit things they must admit . . . information damaging to your adversary or helpful to you. Each time you ask an open-ended question on cross the door is open for the witness to stick a dagger in your throat. 

So it's important that criminal defense attorneys ask only leading questions on cross examination . . . effectively testifying themselves with the witness acknowledging with the obligatory "yes" answer. Instead of asking "Where were you?" we'd ask "You were at your apartment that night." This leaves just enough space for the witness to respond with "yes" but no room for them to give any explanation.

When cross examining a witness you want to get out the important facts that help your case, or hurts their's, and nothing else. When asking "why," you're giving them a chance to explain. Oops! Unless you don't care what the answer is, never ask why! Leave the explanation for your closing argument where the witness has no opportunity stick that dagger in you. 

Friday, March 9, 2012

Rule #33: "Credibility is Everything"

You can't get anything done in life if folks don't believe what you say. Every life relationship is built on trust, including the relationship a trial lawyer has with their jury. Working to convince twelve people to believe you . . . the criminal defense lawyer . . . is a tough, uphill battle. When a prosecutor declares they represent the State, they immediately have credibility with the jury by default. They can lose this credibility, but they usually don't need to work hard to get it. Not so with the defense lawyer. We must earn the trust of the jury. When we stand up to speak people are always skeptical of us and what we have to say.

Moreover, if we want clients to invest in our skills as a criminal attorney, we must prove we are credible and worthy of their trust. When working with prosecutors and witnesses, they must trust us to tell the truth and keep our word. Finally, when in trial the jury must recognize our credibility if they are going to be open minded about our theory of the case. From the moment we walk in, we must appeal to people's logic and reason as well as to their emotion. But first we must convince them we are credible.

In law - as well as in life - credibility is everything. Before establishing any kind of relationship - be that with a jury, a coworker, or a friend - you must first establish trust. In order to be trusted you must be credible. If a criminal defense lawyer doesn't have credibility he has no foundation upon which to build trust. Credibility, therefore, is everything.