Whether to Cross-Examine or Depose
The most important decision in a cross-examination at trial is ultimately whether or not to cross-examine in the first place. Whether a witness should be cross-examined is determined by a variety of factors, including whether the witness has provided evidence undermining your case, whether the witness's biases have been exposed, and whether the witness has information exclusively within his or her knowledge.
These exact same principles can and should be applied when evaluating whether a witness should be deposed. Classic methods of discovery suggest that a witness should be deposed where the witness (1) has information that is not known to the adverse party that could be helpful or harmful, and (2) has authored documents prior to a dispute arising that support the adverse party's case theory but which could potentially be "explained away."
But does every witness—even those who authored critical communications or documents, or who might have knowledge critical to the dispute—need to be deposed? Consider the following scenario. You represent the defendant in a breach of contract case. The central issue in the case is the ambiguity of a particular term of the contract. You know two witnesses, each of whom is an employee of the plaintiff. Both witnesses state unambiguously that they interpret that term of the contract in the same way that the defendant contends. Your judge has a predisposition against granting summary judgment in such breach of contract cases, where the terms of the contract are at issue. That judge prefers to have a bench trial on the issue of what the terms of the contract really meant when they were negotiated. The parties are too far apart to resolve the dispute through a settlement, and your client has authorized you to resolve the matter through trial and any necessary appeals because of the stakes at issue.
Would you depose each witness? Pursuant to the above criteria, consider the benefits of not deposing: (1) the witness is unlikely to have information that could credibly be provided at trial given his or her obvious bias; and (2) assuming the documents authored by the witness predispute are unequivocal, they are the most credible information as to the parties' intent given an ambiguous term in a contract and cannot credibly be "explained away." Consider the risks associated with deposing each witness: (1) the witness becomes attuned to your style of questioning and is able to more meaningfully prepare for your cross-examination at trial, and (2) the witness is able to learn your theory of the case and to practice "explaining away" the document to escape your theory of the case.
In such a situation, it might be beneficial to forego your opportunity to depose the witnesses and instead engage in a "radical" cross-examination. Doing so will allow you to maximize your client's chances at trial because the witnesses (1) are obviously biased and unable to provide credible testimony to explain away their prior admissions in writing, and (2) won't know your cross-examination style or have experienced the type of embarrassment that might motivate them to prepare for trial.
A Dynamic Cross-Examination Without the Deposition
In this section, I will attempt to outline a new cross-examination technique—the "radical" cross-examination—that fundamentally relies on two strategic decisions: (1) foregoing a deposition of an adverse witness, and (2) employing the dynamic cross-examination methods to take advantage of the witness's inability to prepare for the cross-examination. Recognizing that cross-examinations should be fluid processes, the radical cross-examination employs a combination of cross-examination techniques, from the most traditional to the most innovative. See generally William A. Barton, "Different Types of Cross-Examination," Litig. J. (Or. State Bar), Summer 2012, at 7. Ultimately, however, the "radical" cross-examination heavily incorporates the main theme of the "dynamic" cross-examination technique outlined by James H. McComas in Dynamic Cross-Examination: A Whole New Way to Create Opportunities to Win (2011)—to fluidly question the witness with a variety of questioning styles, monitor the witness's answers, subtly expose the witness's biases, and gently but firmly point out the witness's inconsistencies.
Dynamic cross-examinations encourage attorneys to engage in a more fluid cross-examination. Instead of using leading questions exclusively, a dynamic cross-examination allows the attorney to ask open-ended questions, enabling the witness to gain a general level of credibility. This lets the witness be credible enough to provide the background on the dispute at hand. Having established the witness's general credibility, the goal of the dynamic cross-examination is to then ask questions that will (1) paint the undisputed factual background underlying the dispute, and (2) show that the witness—if testifying neutrally and honestly—could have information damaging your opponent's case.
In conducting a dynamic cross-examination, recognize that asking open-ended questions to provide underlying, undisputed factual background is virtually guaranteed not to hurt your case. To the extent that the witness unjustifiably paints facts in his or her favor, a minor impeachment will establish the credibility of the cross-examining attorney—and by extension the client. But even the dynamic cross-examination makes clear that depositions, where available, are powerful tools to be able to control witnesses even during open-ended questioning.
Now consider conducting a "radical" cross-examination—that is, a dynamic cross-examination after having foregone the opportunity to take a deposition. Trial lawyers operating "by the book" would never conduct a cross-examination without having deposed a witness. Indeed, impeaching a witness with prior inconsistent statements from the deposition would be impossible. But as email and other forms of electronic writing become ubiquitous and easily discoverable, it may be easier—assuming such electronic communications favor your theory of the case—to control a witness's testimony by asking open-ended, but inescapable, questions about them. Doing so has the advantage of potentially avoiding the tricky mechanics of impeachment, while simultaneously telling your client's theory of the case through an adverse witness's own words.
Where a cross-examining attorney has an opportunity to illustrate his or her case theory through an adverse witness, the judge and jury will pay attention and give further credence to the case theory. And to the extent that a witness attempts to obfuscate and "explain away" his or her written communication made prior to the dispute arising, the judge and the jury will recognize the witness to be obfuscating or evading the question—undermining the witness's credibility while bolstering your case.
A Case Study: Cross-Examining a Prison Official Who Spoliated Evidence
To illustrate the advantages of a radical cross-examination, consider the following actual example from a recent trial. In Ball v. LeBlanc, 988 F. Supp. 2d 639 (M.D. La. 2013), at issue was whether the Eighth Amendment's bar on cruel and unusual punishment was violated by the conditions of confinement on Louisiana's death row. Specifically, the issue was whether prisoners being locked in cells for 23 hours per day in extremely hot temperatures and high humidity creates a health risk and therefore violates the Eighth Amendment.
In order to indisputably measure the heat and humidity, the district court ordered that a neutral third-party expert, United States Risk Management, L.L.C. (USRM), measure the temperature, humidity, and heat index inside the prison cells that were the subject of litigation. Shortly before trial, it was revealed that prison officials altered the facilities and thereby potentially spoliated the evidence being collected pursuant to the court's order.
While it would certainly have been justifiable to seek a trial continuance to determine the extent of the spoliation and conduct discovery into the factual circumstances surrounding the spoliation, another option was to forego deposing prison officials on this subject and instead cross-examine them cold. Foregoing a deposition prevented the witnesses from preparing for hostile questioning about an indisputable error in judgment and made trial the first "real" time they were forced to describe their error as directed by opposing counsel.
Conducting such a radical cross-examination without the benefit of a deposition required carefully listening to the answers to questions and crafting the follow-up questions accordingly. And it was also necessary to intensely prepare to impeach the witnesses with their own authored documents. Using a mixture of open-ended questions that called for narrative explanations and leading questions designed to elicit "yes/no" answers, the testimony elicited ultimately resulted in the court making factual findings that one witness lacked credibility.
First, the witness's knowledge of the importance of the court's order was established through an open-ended question:
BY MR. VORA: [Warden] Norwood, what was your understanding as to why USRM was installing those monitors?
BY MS. NORWOOD: Because the Judge wants a fair and impartial, objective reading of the temperatures.
Ball, 988 F. Supp. 2d at 644. Had the witness been unwilling to answer this question truthfully, a document authored by the witness was ready—an email in which she had ordered the court-ordered monitors not be manipulated: "In order to ensure accurate and consistent temperature recording, all fans and windows are not to be adjusted in any manner. In addition, no offender and/or employee is to tamper with the recording devices placed on each tier." Ball, 988 F. Supp. 2d at 644. Thus, asking this open-ended question contained a controllable risk, but allowed the witness to use her own words to make her opponent's point.
Second, having established the witness's knowledge of the court order, the witness was asked through a combination of leading and open-ended questions to explain why structural changes to the death row facilities were made during the data collection period. Again, these open-ended questions required the cross-examiner to carefully listen to the answers in formulating follow-up questions, but the resulting testimony was more natural in its delivery, if implausible in its content:
BY MR. VORA: Why were the awnings installed on the death row tiers?
BY MS. NORWOOD: To see if it would make a difference as far as providing shade over the windows, to see if it would cool—to see if it would make a difference, as far as the temperature, to bring it down.
. . . .
BY MR. VORA: Are you ever in a position to ask [your fellow warden] questions?
BY MS. NORWOOD: Yes.
BY MR. VORA: Did you ask him whether installing soaker hoses would affect the gathering of the data consistently and accurately pursuant to this Court's order?
BY MS. NORWOOD: Not in so many words.
BY MR. VORA: Did you ask him in any words?
BY MS. NORWOOD: Yes.
BY MR. VORA: What did you ask him?
BY MS. NORWOOD: I asked him if he seriously thought that wetting the outside of that building would impact the interior temperature.
BY MR. VORA: Why did you ask him about impacting the interior temperature, but you didn't ask him about whether or not that would be consistent with this Court's order that accurate and consistent data be recorded?
BY MS. NORWOOD: It didn't occur to me.
Ball, 988 F. Supp. 2d at 646. This combination of open-ended questions, follow-up questions that were leading but incorporated previous answers, and leading questions designed to elicit "yes/no" answers was designed to ensure the district court's interest in the testimony being elicited.
Demonstrating the power of this combination, the district court interrupted the cross-examination to ask its own questions and indicate its own incredulity with the witness's testimony:
BY THE COURT: . . . it didn't dawn on you that [Defendants'] activity was completely inconsistent with your email, the message in your email? . . . and now you are testifying—you're telling the Court that somehow you didn't think there was any problem with the installation, even after you issued this email message to all [of] the supervisors on death row? You saw nothing wrong, no problem with the installation of the awnings? You saw no problem with the use of the misters or soaker hoses or anything else? Is that what you are telling me?
BY MS. NORWOOD: Yes, sir. It is.
Ball, 988 F. Supp. 2d at 645–46 (alterations in original). In the end, the court concluded that the witness's testimony was "illogical and riddled with contradictions and inconsistencies." Ball, 988 F. Supp. 2d at 646–47. The court held that the witness's testimony "lacked the ring of truth" and therefore it did "not consider Norwood to be a credible witness, particularly as it relates to Defendants' actions during the data collection period." Ball, 988 F. Supp. 2d at 647.
Conclusion
Criminal defense attorneys are routinely required to cross-examine witnesses without the benefit of depositions. Civil trial lawyers should consider doing the same where the circumstances warrant such an approach. The general tools of the dynamic cross-examination—when combined with the strategic advantages gained by foregoing a deposition—can result in a highly effective radical cross-examination as the above example demonstrates.
Keywords: litigation, minority trial lawyer, cross-examination, deposition, admissions