Anna Cross: The Importance of Pacing in Trial

Episode Synopsis:Studying philosophy and Japanese in college, Atlanta attorney Anna Cross has always been a deep-thinker with her eyes set on success. After decades of triumphant trials, Cross shares what she’s learned from her years of prosecution: how to set the pacing of a trial, how to improve your cross examination and the attitude to have when you enter the courtroom.

Podcast Transcript: The following is a transcript of Episode 10 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Anna: I want the right result. So, you’re correct. Of course, there’s a strategy, I think you get more, it’s a more pleasant environment. And everybody does better professionally when you can make small accommodations to each other, and it just works more smoothly. So sure, there’s a strategy to it. But there’s also kind of a philosophy to it, if you want to go back to that. I want the right result in a case and the right result is something that I feel good about.

Scott: That was an Anna Cross talking about her professional approach to advocacy. I’ve worked with Anna for years when she was in the major case division and appellate divisions in various metro Atlanta, and Fulton County, DA’s offices. And Anna is as professional as she is capable and intelligent. I really enjoyed spending some time with Anna in this podcast. And I think you’ll love hearing a lot about her approach. And her just absolutely excellent advocacy skills. So enjoy this podcast. And if you are interested in other podcasts from “The Advocate’s Key,” please subscribe. Make sure that you leave a comment or a like and listen to other podcasts as well. You’re listening to “The Advocate’s Key” podcast. You can find out more about me at scottkeylaw.com or email me at scott@scottkeylaw.com or give us a call at 678-610-6624. Anna Cross, how are things?

Anna: I’m doing great, Scott, how are you?

Scott: I’m great. I was in court in person for the first time in forever yesterday. And fortunately, it was a calendar call. So it looks like those were coming back in person.

Anna: I hope you were at least in the top 20 of the calendar.

Scott: I was nowhere near the top 20. And I was very happy about that.

Anna: Oh, really?

Scott: Yeah. It’s one of those situations though, where sitting in the jury box it sort of forces you to take a second look at the file. And I found great motions I could file, which I always do if I ever stare at a file for long enough.

Anna: You’ve always been very productive with your time.

b: Particularly, when I’m procrastinating and like it’s crunch time. All right, so I always ask anybody that comes on the podcast. I don’t like to introduce people. So I’m gonna ask you a question that sounds very existentialist and philosophical. And you can go there with it. But it’s really a basic question. Who is Anna Cross?

Anna: It takes me back to my philosophy days in college.

Scott: Right, right.

Anna: I grew up in a small rural town in Pennsylvania. My folks still live there. And probably the biggest takeaway, or what my kids always laugh about when I talk about this is they were… It was a very small town in a rural area. And there were 32 of us in my graduating class in high school.

Scott: A private school?

Anna: Yeah, it was a small Catholic private school in an otherwise pretty small town anyway, so the public school wasn’t much bigger. But my school was, there were 32 of us in the graduating class and of that 32, I think, 24 or so of us had gone to school together since first grade.

Scott: Oh, gosh, okay.

Anna: Yeah. So when I went to college, there were 300 kids in my first college class.

Scott: Sounds like a big survey. It was a big survey introductory sort of class. So there’s 300 people not in your class, but in this class?

Anna: In the auditorium. Yes, I went to the University of Notre Dame, and there were 300 kids in my intro to English class or whatever it was. And so it was more than a little bit of a culture shock. But I persevered, I ended up graduating from Notre Dame with a philosophy degree. If you want to get all existential we can go down that path.

Scott: Oh, no wonder, everybody I ever say, “Who is so and so?” to, they just go, “Huh?” when I say, “That is existentialist,” they’re like “Whatever.” You’re the first person that almost went there.

Anna: I can Scott, I can. When this podcast is over. Let me know if you want to talk a little Descartes.

Scott: Okay, so why Notre Dame and why a philosophy degree?

Anna: I went to Notre Dame. My father went to Notre Dame, my older brother went to Notre Dame, grandfather was a big fan, so it was kind of a family thing. And I love football and philosophy because I had absolutely no concept of paying my own bills at that time. Because I would obviously not have chosen philosophy otherwise.

Scott: Yeah, either you wanted to be a teacher, you had no concept of what you wanted to major in, or you probably thought you were going to law school.

Anna: I thought I was going to law school. Yeah, I took a minor in Japanese. I actually thought I might go into Diplomacy State Department or something along those lines, so my philosophy and Japanese degree of course led me to law school.

Scott: Do you still do anything with the Japanese stuff? Do you still actively practice it or anything like that?

Anna: I don’t. I mean, at the time, I’m dating myself, but at the time it was the early ’90s. And Japan was a big no, no. A lot of business and kind of social ideas that the Japanese was gonna be a real valuable skill. And I like languages so I just kind of picked that up. I don’t do much with it now at all other than occasionally have a conversation with one of my old Japanese professors from school that I’m still in touch with. But that’s about it. I can count to 10. And I can tell you, I like your watch. But that’s probably about it.

Scott: That’s about the extent of my knowledge of French. Although, I’m trying to brush up on French on Duolingo. And I don’t know if that really gets you anywhere. Honestly.

Anna: Yeah, I’d like to think it does. I like to think that if I ever have spare time again then I would pick it back up and brush up on Japanese because it’s a beautiful language. I love it.

Scott: Yeah, I mean, same with French, although Japanese is a whole another level of language learning. I just couldn’t imagine even starting that.

Anna: Do you want me to tell you I like your watch?

Scott: Yeah, please tell me. Yeah. Let me hear you say it.

Anna: [foreign language 00:06:19]

Scott: I can’t wait for the people to transcribe their podcast to get to that portion.

Anna: I sincerely hope there are no native Japanese speakers among your audience.

Scott: So were you the first in your family to want to be a lawyer? Were there other lawyers in your family?

Anna: They were not other lawyers in my family. I don’t know that it… I certainly, didn’t go to college thinking I want to be a lawyer. But once I had my philosophy degree firmly in hand, then I decided that yes, of course that’s exactly what I’m going to do. I took a year off before going to law school. But then I ended up at Emory Law.

Scott: I see. Oh, so what did you do in the gap year? Did they even call it a gap year then?

Anna: They didn’t. The millennials, I think coined that one. At the time it was just I’m taking a year off because I can’t stomach the thought of going through another three years of school. I actually did a year of public service. Community service volunteer work was very, very big at Notre Dame at least when I was there, and everyone I think everyone I knew volunteered doing something. So it was encouraged, and it was supported, and I volunteered all through my time at school at the pediatric ICU, the NICU at the local hospital. And again, it was the early ’90s and HIV positive infants and children. AIDS was a huge problem. It wasn’t nearly as treatable as it is now, at that time, and there were a lot of kids in the hospital, infants born HIV positive.

Through that work, I found a foster care organization in Houston, Texas called Casa de Esperanza de Los Ninos. It was a private foster care organization that took infants and children up to age six, who were HIV positive or had full blown AIDS or were otherwise medically fragile. So I went to work there for a year before going to law school.

Scott: You know, I’ve recently watched “Dallas Buyers Club” for the first time. And I had forgotten…I was very young then. But I had forgotten just what the public hysteria was about HIV in the mid-’80s to early… I’d forgotten that whole mindset and issue. So, to do that it’s a wonderful thing that you did anything like that. But to do that, in the time when people were kind of crazy about this topic.

Anna: They were and honestly, Scott, that’s why I did it. There were volunteers at that hospital who wouldn’t touch the HIV positive infants. And certainly there was enough known…not everything was known at that time, but there was enough known to be comfortable that that wasn’t something that was dangerous or proper precautions, everything, and everyone would be fine. There was no danger to handling a child who was HIV positive. But there were people who just refused to do it. There was medical staff who refused to do it. And that’s why I was like, “Oh. There’s a need, I can fill that need, that is not something that I’m afraid to try.”

Scott: And so your day to day when you were involved in that, what were you doing?

Anna: So they licensed me, I applied for and I was licensed as a foster parent in Texas. They put me in a house with another volunteer and a charge account at the CVS and the local grocery store and they sent me kids. I could have up to six children in the home between the two volunteers that were there full time. And we had people who came in to assist, volunteers who came in a couple hours a week, things like that. It was a great organization. But they sent us kids. And for a time, a long time that I was there, we had infants who were like three months old, four months old and five months old. And we had those three kids for about eight months. It was pretty much like having triplets but triplets with a lot of medical appointments.

Scott: And at this point in time, you’re in your 20s, I suppose.

Anna: I am. Yes. I certainly, didn’t know what I was getting myself into. But I guess that’s probably good. I wasn’t afraid to try it.

Scott: And this was in a group home kind of setting. Is that right?

Anna: That’s right. Yeah.

Scott: Okay. And you did that for about a year, obviously. And then, was there ever a thought that you would just kind of keep doing this indefinitely, or what sort of swung you back to law school?

Anna: Well, I had always planned on, it wasn’t a career choice. It was always intended to be a year before I went on just to law school. And so during the time I was there, I applied and got into Emory, and eventually made my way to Atlanta.

Scott: Was your thought that you were just gonna be a lawyer of some sort? Or did you…? I mean, I’ve known you since. Well, I’ve heard of you since as long as I’ve been a lawyer, and we had one pretty huge case together when you were in the DeKalb County DA’s office, but did you think that you were gonna be a prosecutor when you went to Emory or did you know anything that specifically?

Anna: No, I did not think I would be a prosecutor. I don’t think it ever occurred to me that I would. Again, I liked the languages. I liked the idea of diplomacy. I was still thinking State Department or something international when I went to law school, and it wasn’t until my third year of law school, I interned at the Cobb County District Attorney’s office with Debbie Burns, who went on to the Court of Appeals judge. She sadly died a few years ago. But Debbie Burns and Nancy Jordan were my supervisors in the Cobb County DA’s office in the Appellate Division, and I thought, okay, this, maybe this one’s for me. I like this prosecution thing.

Scott: And was this interning, or was this your first job at a law school?

Anna: It was interning. I think I got credit, but it was interning at the time. And so I drove myself up to Marietta, twice a week. And it just amazed me, the work they did and how… I’d just never been in an environment like that. I’d worked in a law office before, and it was great, and people were wonderful. But this felt like a calling to so many people who were there. It was kind of infectious to be a part of.

Scott: And is that just being in a prosecutor’s office in general? Or is that specific to being in the Appellate Division?

Anna: I couldn’t… At that time, I just, I associated it with the Appellate Division. I never thought to do appeals before, though I always like to write and I was in moot court in law school and did well, I had a fun time doing that. So the writing very much appealed to me. What I found when I did that internship was I really liked appellate law. There weren’t too many careers. I mean, you have found one. But you’re kind of a unicorn in that sense. There aren’t too many careers doing just appellate law outside government work.

Scott: It was hard to figure out. I mean it was hard to…and a lot like you, I never saw myself doing that. And the other thing about you is, and I don’t know when you made this discovery. But you also are excellent at trials and a lot of appellate lawyers can’t pivot and take a witness or do an opening statement or do a closing or do… You’re good at complete litigation. Although, I think of you as an appellate lawyer first, but I know that you’ve tried cases as well.

Anna: That’s why I think of you as an appellate lawyer first. I was an appellate lawyer first. I’ve been so fortunate that a lot of my career, I’ve been able to do a hybrid of trial and appellate work. I started out doing appeals. And once I finished that internship, Nancy and Debbie were great and helped me get a job in the Fulton County District Attorney’s Office. And I started in the Appellate Division. But in that office, at that time at least…it was the late ’90s, they had…the appellate unit also sat in on big trials. And so being in the appellate unit at that time, and I always liked trial work. I liked the appellate work, I was able to have kind of a hybrid of both trial work and continue to do appeals.

Scott: So yeah, because I remember because I did a pretty big case. I mean, I worked on a big case right out of law school. And I remember that if the major felonies unit was doing some huge case, and this was very smart of the DA’s office at the time. I don’t know, I’ve lost track of how they do things in the last five years or so, and of course the administration’s changed there. But I remember that there was a relationship between the Appellate Division and the major felonies, and they would pull somebody from the Appellate Division over for any big trial.

Anna: Yes. And that’s how I started doing both the trial work in addition to the appellate work. And of course, while I’m sitting there. Well, there’s a witness, I can check that witness or there are the motions, I’m not just gonna sit there, I’ll argue the motions too. And, oh, okay, well, can I open? And can I do this? Can I do that? Especially Fulton County at that time, it was very fast paced, a lot of stuff going on, and somebody who was young and kind of hungry for experience, it wasn’t hard to get it at all.

Scott: Right. Okay. So this is very interesting, because I’ve been pulled into…very rarely. I mean, I wish I did it more. And I wish more lawyers saw the value in it. But I’ve been pulled into trial teams in that role. That was primarily the role in the case that you and I did with one another in DeKalb. I was kind of there helping to shape potential appellate issues that might arise during the course of the trial. And I see what that role is on the criminal defense side, which is you’re trying to preserve error, because in the event of a loss. Being a person that very often will get files or will get retained after a trial, it’s just frustrating to read a transcript and to see error not preserved. And so it’s really wonderful to be in the position where you can sort of help shape the record. But I know that in the event of a loss, we can appeal. Now, on the prosecution side obviously, if there’s a not guilty verdict, you can’t appeal that. So what is the role of someone from appeals being on the trial team, for the prosecution?

Anna: The idea, Scott, is not so different, kind of I guess, the mirror image. My role on the trial teams was…in addition to whatever trial presentation I did, was to make sure that the conviction stood. And that we were just doing the right thing, doing the right thing. And so as an appellate lawyer, like you, I’ve often gotten plasmic. “Why did they find that jury charge? They should have just given it.” Or “Oh, well, they probably asked for too much there.” There’s lots of things as you look at the trial, you’re like, “Oh, if I had been there, oh, I’d have done that differently.” So that was kind of my role.

Scott: So kind of the advice you’re giving to a trial attorney in that setting is, hey, just let him do this, like, this is not gonna make or break us. Just let them get the charge. Or, you know what if he wants to say this, let him say this, if this is the defense he wants to raise, let him raise that defense, because you don’t think it’s gonna matter in the long run, and you’re gonna take the error out. So I’m assuming a lot of the advice you’re giving is, I understand the judge will give you this, the judge will let you do this. Or the judge might exclude this piece of evidence the defense is trying to get into, but just let him do it.

Anna: Sure. I mean, that’s a big part of it. Another big part of it, though, is making the right argument to the judge and making sure the judge’s ruling is kind of appeal proof as well. I want the judge to make the right decision for the right reason and build the right record so that when I stand up in front of the Supreme Court later, I can say, “Well, look, the judge did everything exactly right. And this was the instruction that was given that cured whatever error they’re alleging right now, or this is the 403 analysis, the judge specifically went through and made these specific findings.” That’s the kind of contribution you can make when you’re sitting there at the table, to know that all the hard work that’s going into the trial is gonna get the right result, and then you’re gonna be able to keep it.

Scott: So how long were you involved in it?

Anna: 10 years.

Scott: Okay. And then was that pretty much your role the whole time that you were there, were you primarily assigned to the Appellate Division? Because, like I say, I always think of you as being an appellate lawyer, but I also came to associate you with the big case, like whichever DA’s office you were in. I’ve always associated you with kind of major cases in the metro area, over a certain period of time.

Anna: I’ve been very fortunate Scott, that I’ve kind of been in a right place at the right time kind of situation that I’ve had the opportunity to work on just great, amazing cases with great, amazing lawyers on both sides. When I was in Fulton, I was in the Appellate Division, but I was also the chief of the capital litigation unit. And so I handled all the death penalty cases and would be part of the trial team as well as be the primary appellate attorney on it. And that also just kind of morphed into not just capital cases or death penalty cases but ended up being high profile cases, or we call them high media cases. That was my role in Fulton and then I spent some time in Cobb County. There I was primarily…I was the head of the appellate unit in that District Attorney’s Office. But then when I moved to Cobb County, in I guess 2012, 2013, then my actual title was chief of the complex litigation unit as well as the appellate unit. So you’re right, I mean, I always had an appellate role, but I also had a role in capital cases or more complex litigation that was going on in those DA’s offices.

Scott: Well, and then I can remember on the case that you and I did in DeKalb, what struck me about your litigation style is, so yes, you would come into court very well prepared. And you knew the law, you knew how to present really well in court. But the thing that always struck me just sort of working with you on a case, because I remember that we started working on this case, at the point it reached the motion for new trial stage. I don’t remember you very much from the trial.

Anna: Right. I wasn’t even in the District Attorney’s Office at that time.

Scott: That’s right. Yeah. You were still in Cobb, when this case trialed.

Anna: Right. I just came in for the motion for new trial. You’re right.

Scott: But I remember that there were certain things that we had. I mean, just the logistics of putting on, a lot of people that don’t do, I guess appeals or who maybe don’t do a ton of litigation, or maybe who aren’t lawyers that might listen to this. A lot of people’s view of what lawyers do is just that we’re at each other’s throat constantly. But there’s a lot of orchestration that kind of goes on into sort of getting something set. And it’s almost like a little production in a way. So there’s a little bit that goes into getting things scheduled and getting witnesses coordinating and getting like the motion for new trial. There might be certain pieces of evidence that you want to get in the record that may not be in the record in a particular way. And I just remember, you were very collegial. And you were very professional about just the logistics of cases. And I don’t think that’s always the case with my opponent. But I mean, first of all, I think you’re nice, but I think there was also a strategy involved in that, I got the feeling that you were not gonna get into disputes about things that were unnecessary to dispute. I think there was an element of probably keeping the record as clean as possible that came with that.

Anna: Sure. That’s why, I mean, of course, I would always want to work well with opposing counsel, and you in particular, are quite charming and wonderful. And skilled. I always appreciate very much skilled, competent attorneys on the opposing side because especially when you’re in criminal law, at least on the prosecution side…

Scott: That’s not always the case.

Anna: It’s not always the case. But, as a prosecutor, I always wanted the right result, like, I don’t want somebody to stay convicted if they shouldn’t be convicted. I don’t want someone to lose on appeal because their lawyer didn’t put the right thing in the record. I mean, that’s just not the kind of prosecutor I was, that’s not the kind of prosecutor that I think most people who work in that area are. I mean, I want the right result. So, you’re correct. Of course, there’s a strategy, I think you get more, it’s a more pleasant environment and everybody does better professionally, when you can make small accommodations to each other, and it just works more smoothly. So sure, there’s a strategy to it. But there’s also kind of a philosophy to it, if you want to go back to that, that I want the right result in a case and the right result is something that I feel good about.

Scott: I think you also know that really cases are gonna come down, I mean, on appeal. Generally, I mean, I don’t think there’s any secret to this just having done this for years. Generally, most trial judges get it right. I mean, most, if you look statistically at the reversal rate, for I mean, we can talk about all cases, but particularly if you get into criminal cases, the reversal rate is awfully small.

Anna: Yes, yes.

Scott: And even as someone who, I think I’ve done really well, I lose a lot. So most cases are done well or done right. And generally, I always found that a case is gonna boil down to overwhelmingly one thing. I mean, generally cases that are reversed on appeal, they’re gonna come down to one thing, I don’t care if the trial was six months long, they’re generally gonna come down to one, maybe two things. And so I think you always sort of got that, that you knew that we’d probably…generally, that it’s gonna come down to this one or two things and having collateral fights about issue 27 probably doesn’t do any of us any good.

Anna: Yeah, I think that’s exactly right. I mean, like probably you’ve been doing this a long time, Scott and very good at what you do. When you look at a file, you can, I’m sure identify right away the issue that you’re gonna be arguing.

Scott: Focused on.

Anna: Yeah, exactly. You can see the issue that is gonna be a winner for you if anything is, same way that when I look at a case file before the trial, I can see the closing argument as I read the file. When I look at a case that’s been tried and I’m bringing the transcript in preparation for doing the appeal, I can see the argument, I know what I’m gonna be asked questions about. And I know what I’m gonna have to defend, and I’m trying to form everything from there around those points.

Scott: You can sort of envision the brief of appellant or you can envision what the motion for new trial hearings gonna be about before it’s even drafted. probably.

Anna: Right. And to go back, I mean, that’s, I think the value of having an appellate attorney at the trial table because I’m thinking, as an arguments being made, or as a judge is making a ruling, or I’m deciding whether to object, I’m like, “All right, well, how am I gonna defend that later? Am I gonna feel good standing up saying, ‘Well, this is what I did, and this is why and here’s what the record is, and I’m telling you why it’s not error.’?” Lots of times, I’m actually saying out loud, “Well, I can’t defend that later. Don’t do that.” Or “Let’s do it this way. This is how I want to argue the appeal, a year and a half down the line.”

Scott: Yeah. Do you really need to exclude this argument, to give them something to fight about on appeal? Or is the argument kind of patently ridiculous? And maybe they’re gonna be worse off if they’re allowed to make it. So I’ll just go ahead and let you say this and go ahead and let you do this jury instruction. And I’m just gonna give you a hard time about it in my closing.

Anna: Exactly. Yes, I would much rather let you get in this witness that you disclosed late and isn’t gonna be impactful in the big scheme of things anyway. I’d much rather do that then have to justify later why the defense alibi witness was excluded.

Scott: So when you were gonna do one, when you were gonna try a case, what kind of was your method to prepare a case for trial? That’s kind of a big question I know. But you said a second ago like you, it sounds like you would start with the closing in mind.

Anna: Yes, I definitely read a file for the first time and I know that I know the case well, when I can picture the closing and I can picture how I’m gonna put up this witness and how the direct is gonna go. And all right, if I’m the defense, and I’m gonna do this, and so what am I gonna do to shut that door? Like, I read the case file, I think most trial attorneys get to a point where you read the case file, or you build the case file with an idea of how you want to close the case.

Scott: And so would you look at jury charges first? I know a lot of people say that when they open the file, they start thinking about jury, they pull the jury charges together right away. What would be your method there?

Anna: I don’t think jury charges, I think, “How am I gonna persuade a jury that this is true, how am I gonna argue it to a jury? How am I gonna get the person on the back row to understand this element, this element, this element?” If it’s a very complex case, there’s a lot of expert testimony or I think I’m gonna need expert testimony, I don’t start thinking about my expert, yet I start thinking about how I want to explain this complicated technical issue in closing or in opening, so that the jury understands it and I kind of build my case around that.

Scott: I see. So you really think about the book ends of the trial, you think about how you’re gonna introduce a topic in opening and you think about how you’re gonna argue it in closing. And then that’s sort of your outline, and you sort of fill it in from there with your witnesses.

Anna: Right. And of course, it changes, I talk to witnesses, and a fact I thought was true is not true. So I’m like, “All right, well, let’s try that.” But I mean, as you know, as a writer, it’s much easier to have a draft and edit it than it is to start fresh every time. So I consider my draft of the closing exactly that, a draft of the trial. And I gotta edit and I gotta move things around. And I gotta edit and I gotta get the right people in the right spots at the right time. But I think about…but that’s kind of how I plan the trial in my head. And I’m also very aware all the time when it gets closer to trial and when we’re actually in trial, the pacing of it, I think is something that most lawyers overlook.

Scott: What do you mean by the pacing of the trial?

Anna: I think, I mean, as a prosecutor, and now I do primarily plaintiffs work, I think of, it’s all part of persuading the jury. So as somebody with the burden, as a prosecutor or a plaintiff has, I try to think about convincing the jury and keeping the pace of the trial going so that the jury is engaged. They’re with me, they’re following what I’m doing. We have a connection and I’m with them as we’re explaining the facts of the case and the law at the end. And I just think the pacing of the momentum of the trial is very important and I think probably overlooked.

Scott: Okay, so this is kind of interesting to me. So I know that there are certain types of cases where that’s a challenge. I mean, if you’re talking about five kilos of cocaine in the trunk of a car, and it’s gonna be like a two-day thing… Well, I mean, even that you have some problems, because there’s gonna be that set of testimony where you’re talking about potentially chain of custody, but probably not so much. But you’re talking about the weight of the drugs, you’re talking about how…what they did at the crime lab to determine that it was, in fact, cocaine. And in a murder trial, it seems like in a murder trial, there are those set of witnesses that you’re trying to prove chain of custody, among a set of things that were found at a scene or, you’re gonna put the medical examiner up. But I would think maybe even in particular, in a white-collar type of a case, where you’re just tendering bank records, or…I don’t know. I mean, I think all big cases have this set of witnesses that are absolutely necessary to make out your case, but are kind of probably hard to pace, like cell phone tower records, text messages, and proving those up. So there’s those types of witnesses that don’t lend themselves to being interesting. How did you pace that type of evidence back when you were a prosecutor?

Anna: So you’re exactly right. Like, that’s the kind of testimony that if you’re not tending to it, that’s the afternoon that the jury sleeps, they just miss it. So as a prosecutor, as any attorney, that’s when the jury needs you, like, that’s when they need you to make it accessible.

Scott: When you’re opening up 75 paper bags and pulling things out and tendering them.

Anna: Yes, yes, yes. Yes, yes. So you can do it with a…as you know, lots of witnesses are not naturally great public speakers, so things can get monotonous and kind of dry. So it’s, I think, the attorneys job to not make a production out of it not to be overly dramatic, but to keep the jury engaged. So if that means making a graphic and making eye contact with the jury, and make sure that you stop your witness every couple of however, many times you need to stop the narrative of the witness to make sure that…

Scott: Like, “You just said this word and tell me a little bit about what this means.” That kind of thing.

Anna: Exactly. It’s like, “Okay, wait, you said that, and I’m not sure. Can you explain to the jury what you mean by that?” Or if you’re going through phone records, like you said, it’s very, very hard for people to keep anything detailed, like the times, dates, locations, things like that, it’s hard for them to keep it in their mind. So of course, you should have a graphic, and maybe it’s a graphic that’s very professionally done. And it looks, you know, you already have all the information that the witness is gonna testify to and you want the jury to understand, maybe you’ve already got it on this board or presentation that you’re letting the jury look at. Lots of times what I’ll do just to keep things in the courtroom moving, to keep the jury interested is I’ll just have a blank large pad on an easel. And I’ll write what the witness is saying if I think the jury needs to get more engaged. Jurors pay attention to what they see. And jurors pay attention to something novel or new, especially in a long trial, like you were talking about. So, when I talk about momentum, I’m thinking, all right, well, don’t put your cell phone person if they’re boring right next to another witness who is gonna be really boring. Move as you can to keep the jury engaged and paced and if you have the burden of proof, then that’s always gonna be your friend.

Scott: And you said that a lot of lawyers sort of don’t think about pace and momentum. And I think I know what you mean, but sort of talk about where you see lawyers going wrong if they’re not thinking about pace and momentum. Like what do you see happening from time to time?

Anna: Well, first I’d rely on my own mistakes that I’ve made not so much that I’ve seen other people do. But, when I look back and think about what I haven’t done correctly, or what I would do differently, especially like on cross examination. Again, I’ve got the burden, and I’m moving through my witnesses, then when the defense puts their case up, I am often in a position where I’m thinking a short cross is best. You know, what I mean? I often think that defense attorneys make mistakes with my witnesses on cross by trying to drag it out, by trying to do too much with the cross and losing the power of any point that they have. When I talk about momentum, I’m thinking, well, if you put up an expert, a defense expert that’s up on the stand for eight hours, a whole trial day, and I can see the jury’s long gone, they’re long gone. The last thing I’m gonna do is cross that same witness for four hours.

Scott: Because no matter how bored they are, or how long or monotonous that direct was, when you stand up to do your cross, you’re gonna have their attention for at least a minute or two because the gears are changing, and they want to see what you’re about to do. So you actually put a spotlight on that witness, and you make that witness interesting, just by standing up and starting to question. And you don’t want to drive that back to the defense.

Anna: No, no, I don’t. I want to make my points, I want to make them crispy. I will probably talk louder than the defense attorney did, or the witness did. I will probably move around the courtroom. I will ask questions in a way that advances my case. But if I talk more than 45 minutes, even on a complicated expert cross, I wish I hadn’t.

Scott: Right. I always work on cross, and I try to keep crosses short, even from the defense perspective. I try to stand up and there’s one or two things I want. And if I can get that in one question, if I can get that in five questions… If I think that that point is implicit already from the direct, and I’m not that damaged by the witness, I may not ask anything.

Anna: Sure. If it doesn’t get you anywhere, why would you?

Scott: Right. And sometimes we feel like, or collectively, lawyers, we feel like we have to say something like, I’m here, particularly if you have a client with you. Your client, particularly from the defense side, they’ve watched so much TV, they think that your role is you just need to make every witness look foolish. And you’re never gonna make a witness look foolish. I mean, you might. I mean, you might once or twice every five years, but you’re generally not. And generally, the witness is… There are a lot of witnesses in the course of a trial who are just there because they work for the cell phone company. Or they’re there because they saw something and they’re not bad people, and they’re not there with any kind of agenda. So, it just is dumb to try to make witnesses look foolish. Because I feel like the jury sympathy is never with the lawyers. I feel like the jury identifies with the witness. Yeah. And if you can get in and out in five minutes, you probably should.

Anna: I think you probably should. I think you rarely help your case by just asking questions that the jury doesn’t care about the answers to.

Scott: Right, right. So you were in Fulton, and then you were, I think in Cobb for a period of time, and then you were in DeKalb. And so when did you make the move to private practice?

Anna: I left prosecution in 2018 to go with my firm, couldn’t be happier with it. It’s a great firm, the Summerville firm. And I’ve been there for the last couple of years.

Scott: Well, what was the transition to private practice like? And, well, first of all, I mean, you made two big transitions. One is you went from criminal to civil. And then you went from government work for so much of your career into private practice. So what were those two transitions like?

Anna: It was challenging. Definitely the subject matter change was huge for me. The Summerville firm, my partner Darren Summerville and Max Thelen and Meredith Kincaid, all great lawyers. And what we do is, the work is very much like the work that I did in prosecution. I mean, we are an appellate firm that does a lot of trial work. So it’s that same hybrid of trial and appeals. And that’s what made me comfortable that I could switch because in the end, it’s a new subject matter. But litigation is litigation and appellate work is appellate work and trying cases anywhere is similar to trying cases criminally.

Scott: Is doing personal injury, in terms of how you try the case, or, how analogous is it to prosecuting? I mean, I know the whole discovery part is completely more complicated in its own little drama. But when you get in and you’re picking a jury, and you’re going to opening and you’re putting up witnesses, and you’re closing, how analogous is that to being a prosecutor?

Anna: For me, it’s very close. Because if I’ve got someone… I’ve almost always got somebody who was really horribly injured, or in some way, victim like, and so I feel the same way about the case. I always want justice, I want the right thing, I want my client to feel compensated at the end or, like there was some justice reached. And so for me, putting the case together from the plaintiffs side is very similar to putting together a criminal case from the prosecution side.

Scott: I see. So what about the discovery? What kind of adjustment was it? Because I’m moving to personal injury myself, I’m doing more and more of that. And there’s something wonderful about discovery takes place when I get a jump drive or a disk or an email or, or even a big fat envelope filled with paper and I open my envelope, or I put that disk in or I plug that hard drive into my computer, I’m dating myself saying, a disk. I plug that hard drive in, and I open up the file. And okay, discovery is now complete, like when it’s usually that single moment of delivery of a thing. That’s actually served me quite well. And having done this for years and years, both trials and appeals, I feel like I could, if you handed me a garden variety criminal case, I could probably study the file today and open tomorrow. And just like with you, you’ve had witnesses no show on you or someone’s flight is delayed. And suddenly you have someone that you thought you were gonna put up at 9:00 isn’t gonna be here until 1:30. and you have to sort of, in 10 minutes, organize a set of witnesses. Because at 9:00 your judge is gonna say, “Ms. Cross, call your next witness,” and you’ve got to have somebody there. So you’ve learned to make those adjustments on the fly. How’s the whole discovery component of civil work, compared to what you used to do, and how have you adjusted to it?

Anna: I’m gonna be absolutely surprised if you’ve ever had anybody on your show or talked to anybody who’s gonna say like discovery’s their favorite part of litigating. And I’m completely suspect of that person, if you find them. The discovery part, of course, is not my favorite. I don’t think it’s anybody’s favorite. In prosecution, it was actually quite easy because you just give them everything. If I’ve got it, you can have it.

Scott: In fact, here’s my file, if you want to come by this afternoon.

Anna: “Come look at it, I’m gonna pull out my notes but otherwise, you take what you want, and we’ll copy everything for you. And if you have a hard time getting something yourself, and it would help to have a state subpoena, then let me know, I’ll get it.” So that was kind of my attitude in prosecution, again, with the eye towards, “Well, I don’t want to be explaining later, while I didn’t give them something.” Better for the case.

Scott: There’s no Brady v. Maryland in civil.

Anna: No, there’s not. But at the same time, it’s challenging a different way, because you have to ask for the right things, you’ve got to follow up. The most interesting part to me is how different people who have litigated only on the civil side, and coming from prosecution, criminal law. I find now a lot fewer people are…not very many attorneys will actually talk to the witnesses before there’s a deposition, for example, or before they even put together their case. There’s an assumption of what witnesses might say, but few people actually talk to them. In putting up for example, like a case based on a car accident, a lot of attorneys will file the case having only talked to their client, not to any of the witnesses that are listed in the police report or anything else. And so it’s always a bit of a surprise when things don’t track exactly as perhaps your clients version of events would have led you to believe. So that part I bring with me from doing criminal work for a long time. I always like a live witness, instead of reading deposition excerpts. I always talk to my witnesses beforehand. I craft my trial plan my order proof, having talked to the witnesses and knowing their personalities and thinking of how they will present to the jury and again, how I want to pace my case. So, discovery I undertake too, just with an eye towards, “How will I try it when the time comes?”

Scott: Okay, and I know that we’ve talked about this before. I mean, not on the podcast but we’ve talked about it in another conversation, but your notion of pace and momentum, and your notion of get what you want from the witness and you don’t need to drag it out. And this sort of less is more sort of approach. Is that an approach you also take to discovery, like if you’re deposing a witness, is that kind of what you do? And do you see your approach as common with how a lot of lawyers do discovery?

Anna: I think I do it differently. And I’m not saying it’s better or worse, and I have much to learn, I’m sure. But again, if I’m deposing somebody, and particularly if it’s my witness, I’m defending the deposition, or it’s somebody who is non-hostile to me, then I’ve already talked to that person several times. So I don’t need to ask questions in the deposition for discovery purposes. I know what the witness is going to say because I’ve asked them, I’ve already talked to them. So I’m not one who will stay with a witness for eight hours just because I can. We all hate those people. But I don’t do that. But at the same time, even my witness, I will with an eye towards maybe a summary judgment motion or a Daubert motion if it’s an expert, or substantive motions down the litigation line, I will get what I need from that witness in a very succinct, very quotable kind of way so that I’m preparing not just for the discovery process and for the trial, but also for the motions that I’m gonna have. So if it’s a witness who saw a trucking accident, for example, I’m gonna ask that person to summarize for me in their own words, what they saw. And then that’s something I can cut and paste later into a motion if there’s any question, like summary judgment motion. Have I met all the elements? Well, yes. Here’s this witness explaining to me exactly what happened.

Scott: And that seems like that’s a skill that you took with you from being a prosecutor, or from doing appeals as a prosecutor. You’re thinking about how is this gonna look on paper? Or is this something I can just cut right out of the deposition and just Ctrl V and paste right into my motion or right into my summary judgment response?

Anna: Exactly, exactly. It’s just, it’s quick, it’s efficient, it’s easy. And it’s better for the judge who’s gonna be reviewing, making a decision and ruling based on your pleadings, that it’s succinct, it’s concise, it’s easy and accessible. When you’re talking about trial work, I want everything to be easy and accessible for the jury. If you’re talking about motion work, I want it to be easy and accessible for the judge.

Scott: Okay, but it sounds like what you said a moment ago is you guys are an appellate firm. So you’re an appellate lawyer. And it sounds like you’re doing the civil component of what you used to do as a prosecutor, which is, you’re primarily an appellate lawyer, but you do trial work, too. Are you embedding in the trial teams in the same way that you would do way back in Fulton? Are you doing some of that as well?

Anna: Yes, yes. And what we’ll do now is my firm, the center of our firm is very much like the appellate unit in the Fulton County District Attorney’s Office. If it’s a big case, we’ll have a co-counsel bring us in to do the motions work. Yeah, I like to try cases a lot. And my partner Darren Summerville is a great trial lawyer as well as a great appellate lawyer, he tries cases a lot. So we’ll get called in on a case where co-counsel just kind of maybe needs some legal writing expertise, which not a lot of attorneys love doing the writing part, but we do and enjoy it. But we do the kind of dispositive writing, summary judgments, Dauberts, motions to dismiss. And then in many cases, we’ll stay with the case to try it for all the reasons that we talked about before. Because if there’s gonna be an appeal, you want to make sure that the verdict stays, there’s nothing worse than going through the effort in a civil case of discovery and trial and then getting it reversed on appeal or significantly reduced on appeal. That’s just bad for the client. It’s bad for everybody. Nobody wants that. So that’s kind of our role in the civil work.

Scott: I see. And what is the appeal side, like over in civil versus what you used to do?

Anna: As you pointed out earlier, in criminal work, and prosecution, I didn’t lose all that often. That, it’s a different ballgame. And it could kind of go either way, in a lot of cases. And so you’ve been doing this a long time. So maybe you have a different opinion. But I don’t even know if I should say this, you might have to edit this out later. But I found doing criminal work. There’re great attorneys, phenomenal attorneys. And you can tell a case that’s put up or defended by someone who’s very skilled and very good. But at the same time, I can think of a handful of cases that are kind of won or lost on this skill and ability of the attorney. Generally, juries want to do the right thing and the facts win out. That’s been my experience, you might have a different experience. But I think that’s probably true. The skill of the attorney rarely sways the outcome of a case criminally. I don’t think that’s true on the civil side.

Scott: Okay, how’s that different?

Anna: I think that there’s a lot of institutional protection in criminal. I mean, you’re talking about sending people to prison or people who’ve been grievously injured or hurt or victimized in some way. So there’s a lot of institutional protection for the result on the criminal side. There’s some but I don’t see as much on the civil side.

Scott: In other words, there’s no vested interest in one side or another winning or losing when you’re fighting about money.

Anna: Generally not. There’s no clear “he did it or he didn’t do it” kind of dichotomy that is readily apparent, at least to most things. Most times you have somebody who was really hurt medical malpractice or some other cause of action and whether someone was responsible for that or liable for that isn’t always clear. All of that is to say that I think a good skilled litigator on the civil side is potentially very impactful on the outcome of the case.

Scott: Right. Because it seems like the skill maybe tends to matter more on both sides.

Anna: Yeah. I think so.

Scott: So what are you up to these days? I mean, you don’t have to talk about specific cases. But what…I mean, you’ve come out of pandemic, or I suppose we’re still kind of in it. What are your days like these days, what are you up to?

Anna: Well, like everybody else, I’m itching to get back in court. I’d really like to try a case. I haven’t tried a case in the last year and a half or so. So other people might be getting those calendar notices, or especially set trial dates with dread, but I’m looking for my calendar to fill up. I’d really like to try some cases, get some cases moving and just be back in the courtroom again. I miss it.

Scott: Oh, that would be great. Well, I think we’re there. Well, listen, thanks for spending an hour talking to me about what you’re up to. And this has been really good.

Anna: Scott, it’s been great. And I always enjoy talking to you.

Scott: Oh, well thanks so much. Same over here. And take care and if I can ever help you, let me know.

Anna: Well, same, I really appreciate you having me on. Thank you.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com and please rate, review and subscribe to this show wherever you get your audio content.

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