I cut my teeth in law school on Terrance McCarthy’s cross-examination methods. During my 2L year, I recall preparing for a national mock trial competition. During our first practice of the year, our coach popped in a cassette (yes, a cassette.It was the year 2000) of Terry giving a talk in Las Vegas to a NACDL group. I thought the guy on the tape was about the coolest dude I’d ever heard. In a booming Irish/mid-western accent and in between references to getting drunk and a set of the most politically-incorrect jokes you can imagine was a blueprint for great cross-examination that I have taken with me to this day. When we advanced to the final round, who was on the bench in Chicago but the man himself, Terry McCarthy. And I got to do some Terry McCarthy stuff in front of Terry McCarthy. It was the courtroom equivalent of my son having LeBron James as a referee in a little league basketball game. I take the lessons from that cassette with me to this day. I’m sure that many of my clients would be in prison somewhere but for the lessons from Terry that I have retained.
And now I combine my McCarthy stuff with what I learn from Posner and Dodd on cross-examination. The Pozner and Dodd book on cross-examination is like the Bible. I have tried to read both from cover to cover, and it has never quite worked out. But both books work well for regular study, particularly as life events dictate that you dive into particular things. Both are canonical works. Both can seem unwieldy at times. Posner and Dodd have worked out a method for just about everything a lawyer might encounter on cross examination. For instance, there is an entire chapter dedicated to “The Crying Witness.” (Preview: there is much in there about using silence as a control technique.) But more to the big point from today’s dive into P&D. And that point is to forget you ever knew Matlock, Perry Mason, or Jack McCoy — fictional characters who all clean somebody’s clock on cross in the last ten minutes of a tv show.
No matter what method you use for cross, they all have one thing in common. All good cross-examination techniques emphasize planning. And all the cross-examination gurus would tell you to forget that you ever saw a tv lawyer doing a cross-examination. Don’t go for drama. Don’t go for the gotcha. A spectacular cross-examination might seem utterly un-dramatic at the time. Good crosses are planned crosses:
Many lawyers believe that it is possible to perform good cross-examination without a script. This is undoubtably true. It is also possible for a visitor to find her way in a city without a map, but it would be quicker and safer if she had one. It would be easier if she had studied the map and outlined a route in advance. … The lawyer works from a script in cross-examination, so she can avoid the “Oh no”! syndrome. [where cross-examination has been completed and] the lawyer returns to the counsel table where she looks down at her list of things she has to cover and sees one or more things she forgot completely to address. The lawyer says to herself, “Oh no!” (or worse).
Walk into any courtroom on any hearing or trial day and you are much likely to encounter a lawyer attempting to be Perry Mason than trying to be Terrance McCarthy, Larry Posner, or Roger Dodd. From time to time the former will get lucky. But more often than not, Matlock, Perry Mason, and Jack McCoy techniques only work where a team of writers have paid a tv jury for their verdict. The rest of us are better off being methodical planners. And with that, I’m off to continue planning a cross-examination for later this week.