Nothing but the Truth: The Joy of Impeachment

It feels good. Really good. Laying the foundation. Assembling the pieces. Trapping and dismantling the opposing witness. Not for the sake of tearing down the witness or to fuel your ego, but because you fundamentally know the witness is wrong, the witness has overreached, taken a step too far. The witness stands by a position that is unfair and just doesn’t smell right. You reveal the truth for the jury to see.

A master sculptor strips away all excess, carves into stone, laying bare the truth underneath. It’s beautiful. Through cross-examination, we can expose the witness’s own words to the harsh light of scrutiny, revealing the fallacies and illogic of the witness’s testimony. It is a precise and logical art, like the elegant simplicity of great mathematical theorems and proofs Bertrand Russell described as having “a beauty cold and austere.”

So, too, when cross-examination delivers the truth, elegant and concise like a mathematical formula, it is beautiful—a joyous art. John Keats explained, “Beauty is truth, truth beauty.” And James Joyce further expounded, “Beauty, the splendor of truth, is a gracious presence . . . and the spirit which proceeds out of truth and beauty is the holy spirit of joy.”

The Stone You’re Given

Almost every stone can be sculpted, but not in the same way. It depends on its size, shape, contours, and cracks, what can be teased from beneath its surface. So, too, cross-examination depends on the profile of an individual witness. For example, careful consideration should be given to the helpful “constructive” testimony a witness can offer, before launching into a “destructive” attempt to impeach the witness.

Thus, the cross-examiner has the all-important first job of sizing up the witness. Depositions and document review are vital tools to assess the witness’s testimony and build a plan of attack. But sometimes those opportunities are unavailable. In those situations, the examiner must be able to quickly learn all he or she can about the witness, identifying contours, hardness, and cracks during the direct examination.

I recently attended a hearing where we sought appointment of an emergency, pretrial receiver over a real estate portfolio due to mismanagement. Our primary argument was that the general partner breached fiduciary duties. At the hearing, the defendant presented several witnesses we had never had the opportunity to depose and for whom I had no specific documents to use.

With a gallery full of my clients watching, it was a high-pressure moment. A senior partner leaned across counsel’s table to make sure I “had this.” But before I could respond or finish scribbling onto my yellow notepad, opposing counsel sat down, and it was my turn to stand up.

What happened next is likely as close as I’ll come to a true Perry Mason moment in the courtroom. As a result, the judge wrote into her order appointing a receiver that the defendants fundamentally did not understand their fiduciary duties.

When the witness took the stand, I could have tried to confront him with a variety of issues. But with no prior testimony or documents to use, it felt like I’d be chipping away at a block of marble with a plastic spoon. So I just listened. And that’s where I saw the crack I believed would be the fault line down the center.

My initial assessment of the witness was that he was sanctimonious, driven by ego. Hostility dripped from his acerbic tone. This was someone who would cling to his position beyond reason and beyond credibility. The witness overextended. He leaned into the defendants’ position, hard. He explained how the parties’ management contract effectively gave him the right to do whatever he wanted.

So my cross-examination started and ended on this same topic, building from the testimony he’d already given until the crack became a fissure. He clung to the management contract so hard that he testified to his “unilateral” and “unfettered discretion” when dealing with the limited partners. He actually disclaimed any duty not written in black and white in the contract—forsaking the fiduciary duties owed as a matter of law. The fault line ruptured, split down the middle.

While cross-examination can be hard work, it’s primarily about revealing what is already there. It is not uncommon for witnesses to try to be heroes for their case. They may have good intent, believing their side is just, but when witnesses overextend to advocate for a position, they go beyond the truth. They rest on a precarious ledge that cannot support their weight—one that can easily crumble beneath their feet.

So when you know they’re wrong, how do you show it?

The Mold

Most sculpture is a careful balance of proportions and measurements. It’s thoughtfully designed and prepared—painstakingly detailed in sketches and molds before a cut is made into the final material. A cross-examination should be similarly planned and measured.

It is essential in any cross-examination to understand why the witness is wrong; why the witness’s position can’t be true. That means going beyond the gut feeling of an inconsistency or lack of credibility. Through careful analysis of the witness’s position—particularly the premises it relies on and the implications of what it means—you can identify why what the witness says cannot be true.

As part of the analysis, a witness’s testimony should be compared with all other known facts—other testimony, documents, and even outside sources (as the 16th U.S. president famously used a Farmer’s Almanac to prove moon phases). The cross-examiner must, therefore, have an excellent command of the facts of the case. In large, complex cases, that also means harnessing data in a useful way to make the data organized, accessible at your fingertips. By aggregating all of these sources, you find connections and inconsistencies that bind your cross-examination together.

Then, once you know where you want to go, you must sketch and build the path. Logic will not only determine whether the witness’s testimony is truthful but will also provide the framework for how to arrive at the conclusion. Careful logic will define the precise set of questions that leads to that inescapable conclusion the examiner seeks for the jury to reach. To get there requires knowing all the escape routes, all paths of egress, and being able to control the witness.

Therefore, a good model for your cross-examination must always remain flexible—it accounts for and prepares you to deal with uncertainty and a variety of potential responses. You must know which answers are attainable—what the witness will admit and what you can force the witness to admit through the use of other evidence. Your model is not a script to be applied robotically, but it shows the lines to follow and the steps you must take. For further reading on this subject, Larry Pozner and Roger Dodd explain the how-to of cross-examination in exceptional detail in their book Cross-Examination: Science and Techniques.

In short, as our grade school teachers reminded us so frequently, “show your work.” The jury needs to see the steps to get to your conclusion. Effective impeachment depends on crafting a series of small points—concessions from the witness, facts that can’t be denied—until the final conclusion is reached. When the important question is reached, no (credible) answer remains but the one you seek.

It’s the preparation that makes a great cross. It’s about thought and strategy. The logical structure should, itself, be aesthetically pleasing, containing rigorous proof and interconnected concepts. It may even feel therapeutic once all of the issues are clearly and precisely teased out in their simplest, most presentable form. Like a key smoothly turning in a lock until it clicks.

Chiseling

Good cross-examination is no more defined by showy delivery than sculpture is by the sculptor’s brute strength. Most of the work will be done in very small pieces. It requires a sharp, precise instrument. Questions must be carefully crafted. The examiner can chisel away narrow fragments that will eventually begin to reveal the contours of the final image to the jury. Leading questions signal to the jury that the questioner already knows what that image will be.

While every examination has its own unique aspects, there are a finite number of tools available for a “destructive” cross-examination. Irving Younger, most famous for his (dubious) “Ten Commandments of Cross-Examination,” astutely described the “nine pigeonholes of cross-examination,” noting that the Rules of Evidence dictate how a witness’s testimony may be attacked through collateral and non-collateral evidence. For example, the rules dictate a witness’s competence to testify and how a witness’s character for truthfulness may be challenged. Mastery of the finite rules yields infinite creativity in their application.

Perhaps the most important tool for cross-examination is the use of prior inconsistent statements. Evidentiary rules governing the use of prior inconsistent statements are vital to master. Through a mastery of prior inconsistent statements, the examiner is most able to establish control over the witness. To be clear, quibbling with the witness over petty differences yields, at best, a Pyrrhic victory. But wisely using prior inconsistent statements establishes control. Used early to confront a witness, like cracking a whip, they help tame a witness to stay within the bounds of prior statements or face the consequences of being confronted with the inconsistency.

Doubly important is that by controlling—leading—the witness and confronting meaningful inconsistencies, the examiner builds his or her own credibility. The witness and the jury will soon realize that behind every leading question, you have a document or prior testimony that proves your point. When you ask, “Correct?,” they know it is.

This battle for credibility is critical. At the end of the examination, that will likely be the single greatest takeaway for the jury: In a contest between the witness and the cross-examiner, who proved to be the most knowledgeable and truthful? Whom does the jury believe?

My first substantive cross-examination was during a jury trial about a dispute between two brothers—each said the other had taken more than his fair share of partnership funds. One of the first defense witnesses was the partnership’s former controller. His deposition had been taken two years before trial, and he had remembered nothing, so he was a good, low-risk responsibility for me.

But then the direct examination went in an entirely different direction. Suddenly, the witness remembered things. Fortunately, I had my transcript of his deposition ready. And I knew his (potential) motives—on the stand, he was reluctant to admit to an elaborate fraud having played out under his nose without his knowledge.

So the mundane cross-examination I planned suddenly became much more interesting. I locked him with “You just testified that . . . ,” and immediately confronted him with video deposition clips of his testimony to the contrary. This required no wind-up such as “Do you remember that time you sat in an office and testified and swore an oath and . . .”—it wasn’t necessary. Video proof juxtaposed what he said then and what he said now. Two years before, he couldn’t remember if he (or anyone) was aware of the defendant siphoning massive amounts of cash from the partnership. But from the stand, he told the jury unequivocally he knew about those and everyone was aware. When confronted with his prior testimony, he squirmed and the jury understood.

Next, having established this change in his testimony, I began to dismantle his credibility. I had two questions that I knew he would need to answer in my favor because logic dictated, and the jury already knew, the answer. First, he couldn’t help but agree with me that it is a rare occasion that two years further removed from an event, one would remember events better than two years closer in time to the event in question. Second, he couldn’t help but agree that as the partnership’s controller—a position he held early in his accounting career—it would certainly not bode well for him personally, and he might even expose himself to personal liability, if his testimony corroborated a fraud. So in a few short questions, I was able to not only show an inconsistency but also demonstrate that the earlier statement was more likely to be true and the witness had a personal motivation to change his testimony.

The coup de grâce, though, came when the witness’s tarnished credibility was imputed to opposing counsel. My question simply emphasized the timeline: “And you made these changes to your testimony about what you remembered after meeting with defense counsel for coffee before trial?”

At this point, the jury smelled a rat. A conspiracy had formed. A pall hung over the witness, the lawyer who had presented him, and the party that tried to rely on him. This innocuous witness who knew nothing became a star. By discrediting him, I didn’t merely inoculate against his testimony; I’d smeared the defense’s credibility.

While the rules about vouching for witnesses have relaxed, the perception remains. Who you put on the stand matters. Your witness’s credibility and trustworthiness attach to your case. And the tarnished credibility of a witness wrecks the integrity of your case. It’s like building with inferior materials. And a cross-examination that chips away at a weak base can wreck the whole structure.

The Reveal

Cross-examination can be truly beautiful. The beauty lies in the truth, which is never more evident than when confronting the witness directly.

Traditionally, and still generally in England, it was required to “put your case” to the witness. That meant directly confronting an adverse witness with your side of the case. If the witness said, “the light was red,” and your case requires that the light was green, you must directly raise this issue with the witness—“The light was green, wasn’t it?”

This is the pinnacle of cross-examination. Not necessarily to obtain an admission or cause the witness to recant. But to have so thoroughly debunked the witness’s credibility that when the cross-examiner puts his or her case to the witness, the jury believes the examiner, and it does not even matter how the witness responds.

For instance, imagine a witness admits having stood across the street with a poor vantage, having previously written an email saying he was uncertain about the color of the light, and having a personal motivation for desiring the light to have been red. Your cross-examination could be finished—and many would say it should be finished. But to put your case to rest requires then challenging the witness directly to say, “The light was green.” Done well, the battle for credibility is over, and it doesn’t matter what the witness says because the jury believes you already.

Ideally, at the conclusion of a cross-examination, the witness is fully ensnared. Entangled in a web. Thus, the late Latin word “impedicare,” meaning to catch or entangle; the old French word “empecher,” meaning to impede; and ultimately their derivative that we use now, “impeach.”

Experience the Joy

Albert Einstein wrote, “The pursuit of truth and beauty is a sphere of activity in which we are permitted to remain children all our lives.” Cross-examination is certainly at least “the pursuit of truth,” but billable hours leave little room for play. Suits, ties, and elevators certainly take lawyers far from the traditional playground. Children don’t live in six-minute increments. But there may be a glimmer of hope to still remain children.

There’s a window of opportunity to flex all creative muscles, to be on the edge of your seat with suspense: In the trial lawyer’s arena—the courtroom—going toe to toe with a witness is a playground of opportunities. It is all the freedom and joy of running from the slide to the swings—though with fewer shrieks of joy.

Yet, we much more commonly hear about trial lawyers “in the trenches”—as if surviving an artillery barrage. So one way to find that joy—apparently easily lost—is to treat your next cross-examination like a puzzle, a fun challenge to build and figure out. Another way to find joy is to remember cross-examination ultimately has very little to do with the questioner. In fact, it’s not hardly about the person answering questions either. Cross-examination is a foundational tool of our justice system. We have rights to a jury trial and to confront our accusers, and those rights are made meaningful through cross-examination. It is a service to distill the truth and put it on display for the community to see.