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Yellowstone: Where I First Saw Cross Examination

One constant in my life as a boy growing up in Utah, was my family’s annual vacation to Yellowstone. Every year during my youth, my parents loaded the family in the car and made the long drive to Wyoming.

As an adult who considers the Westin “roughing it,” I marvel at the accommodations that I thought were so wonderful as a child. My parents rented camper cabins in the park. They were log cabins, and we camped. There were bed frames of wire springs with a mattress on top but no sheets. There was a wood burning stove, but no restroom, no showers, and no heat in the cabin (except from the stove). The bathrooms and showers were community affairs, centrally located in the cabin complex.

I loved sleeping in sleeping bags on top of the mattress. I loved waking up before dawn to go fishing with father and brothers and sister at the Yellowstone river. I loved returning home with the fish we caught and entering the cabin now warmed by the stove with the aroma of bacon, pancakes, and hash browns filling the cabin.

One year when I was eleven or twelve, by father’s brother from Missouri met us at Yellowstone. This injected a new form of excitement into my life for I got to see my cousin Cecil whose nickname was Toughy. I had seen Toughy only 3 times previously. We were friends from the beginning and that year I was so excited to be in Yellowstone with Toughy.

Yellowstone With My Cousin

I did not know how much excitement was coming for Toughy had picked up a new habit. At night, after a day of sightseeing and dinner, we would play around the campground pretending to be trackers or Indian scouts. Toughy was more interested in hanging around the bathroom. I learned it was because he had cigarettes, and as an eleven year old, had mastered smoking and spitting.

I remember Toughy had a pack of menthol cigarettes. He tore the filter off. I asked him, “Why do you do that?”

He said, “The menthol is in the filter, and I don’t like it.” It made perfect sense to me.

Because I did not want to smoke my assigned role in the bathroom drama was to stand outside the bathroom to stand guard in case my uncle or aunt came around. I was to warn Toughy who would toss the cigaret in the toilet and flush. As I stood guard one night, my uncle rounded the near side of the restroom building and caught me off guard. I slapped the side of the log building with my hand to warn Toughy and said in a loud voice, “Uncle Teat, what brings you out on a fine night like this?”

My uncle paused and look askance at me. He looked through the bathroom door and asked me, “Is Cecil in there?”

I replied again in a voice loud enough to warn Toughy, “Why I don’t know. I’m just standing here.”

“How long has it been since you last saw Cecil?”

I started to answer but my uncle held up his hand, walked into the restroom and dragged Toughy out of the restroom. I did not see Toughy for the rest of the night.

My uncle, who owned a bar and was not a lawyer, had conducted a blistering cross-examination with only two questions. That was all he needed to ask. Anyone watching would have known not to believe me, regardless of what I said or how convincingly I said it.

How Do You Conduct Cross Examination

That is a great lesson to me as to how to conduct cross-examination. I have seen attorneys wring their hands with glee at the prospect of decimating a witness, and then don’t understand the jury thinks any attorney can make a witness look silly, rules against them.

Cross examination is not about destroying people. Cross Examination is a study in truth revealed. Truth is the goal of trial. Truth is what moves juries. Truth should be a lawyer’s stock in trade. We cannot hide from truth.

I do not set out to destroy anyone. If the witness answers honestly, it does not matter that he is my opponent – the answers advance my case. I have seen attorneys who upon getting an answer that contributed to their case and helped their client, read from a deposition transcript to impeach the helpful answer because it departed from the deposition testimony. This is an attorney who did not understand his own case or his case’s story.

If on cross-examination, the witness does not answer honestly, I do not get upset – the witness has helped me even in mendacity. You see, the jury knows, just as my uncle did, that the answer is out-of-place and does not make sense. The jury then acts accordingly. Wasting emotion reacting to less than truthful answers distracts the jury. Just let the jury do its job. Trust them.

Question like my uncle did. Answers to direct questions reveal truth no matter whether the answer is true or not. When you trust the jury this way, and cross-examine for truth not destruction, it feels like walking into that warm cabin with the savory smells of my mother cooking breakfast on the top of the wood burning stove.

Tragedy at the Waterfalls

Going to trial can be like walking on the brink of a waterfall. I thought of this today as I was climbing boulders in Yosemite National Park to get to the base of a waterfall. It began with a short hike to the viewpoint for Bridal Veil Falls. At that point many people scramble up the boulder strewn creek bed below the falls trying to reach the base of the falls.

Yosemite warning re dangerous rocks approaching Bridal Veil Falls waterfall

Yosemite warning re dangerous rocks approaching Bridal Veil Falls waterfall

DANGER climbing and scrambling on rocks and cliffs is dangerous they are slick wet or dry many injuries and fatalities have occurred

Close up of the sign

Most who begin the climb turn back without finishing. This is because they slip and slide on the water polished surface of the boulders. For hundreds of years the creek’s eroding flow has polished the boulders’ surface so they have little traction for even rubber bottomed shoes to grip. Imagine trying to ascend an ice-covered slope and you get an idea of the intimidation factor in scrambling over these boulders. I accomplished the climb by choosing a route that offered the greatest traction and because I had spent some of my youth in the Alps rock climbing.

Tragedy taught me to be wary of waterfalls.

When I was eleven years old, and not old enough to be a boy scout, the scoutmaster in my boy scout troop died while on a boy scout hike because he did not appreciate the danger that waterfalls pose. The outing was a typical weekend “overnighter.” The scout troop departed the scoutmaster’s home Friday in the late afternoon and planned to return Saturday afternoon. The scout master was the only adult, and five scouts crowded into his car with their backpacks. They drove to the mountains above our town, parked the car, and began the planned three mile hike.

The route took the group across a small stream in Farmington Canyon at a point where the stream went over a waterfall of no great consequence. As the scouts were crossing the stream near the brink of the waterfall, the young scoutmaster stood on the verge of the falls to insure that none of the scouts ventured too close to the edge. Unfortunately, the scoutmaster apparently did not understand that the stones at the verge of the falls are polished to a near glass-like smoothness by the water rushing over the falls, and he slipped from his position and fell over the falls, landing in knee-deep water.

The group of scouts rushed to help their scoutmaster. He was still conscious and told them, “Don’t move me. I’ve broken my back.” The scouts followed orders so he lay in very cold, snow melt water at the base of the falls.

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Your Client is Your Best Weapon (Video)

Legal Counselor

There is a very fine line that runs through preparing a client to testify at trial and manufacturing a story for the client. Many times–and I’ve seen this happen–attorneys, who for some reason have this need to control everything, think that the story is one thing, and they try to shoehorn everything into it, and force the client’s answers to conform to the attorney’s story.

The problem with that is it’s the CLIENT’S story, and the attorney is missing something. If there is this struggle between client and attorney as to what the case is going to be, my experience is, the attorney needs to take a step back and gain greater understanding of what his client knows, has experienced, has lived with.

Watch the video of the rest of the interview on Legal Counselor: Your Client is Your Best Weapon

Decisions: How Do Judges and Jurors Really Decide?

Last week I went to trial on a dispute between a young man and his grandparents. I represented the young man. He sued his father and grandparents charging  they had stolen $300,000 from a trust set up to provide funding for tuition, living expenses, room and board while he was in college.

The trust was funded by the young man’s mother through a divorce judgment that specified that part of the money she was paying to equalize the property division (buying dead beat dad out of her businesses) would fund the trust with the father and the grandfather listed as the trustees. She fully funded the account.

“You can’t win this case, Young.”

Everyone told me I couldn’t win the case. “The grandparents are old and sympathetic.” The grandparents pleaded, “We did not know there was a trust. No body told us.”  They claimed they never saw the divorce judgment and thought the money belonged to my client’s father. They said they acted only on the father’s instructions. Finally, after the father had taken all the money, the mother signed an amendment to the judgment in the divorce that provided that the mother waived the trust account and waived any accounting of the account.

Friends said, “Run, Steve. Run. You can’t win this one.”

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Finding Imbedded Bias During Jury Selection

Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values. You and your opponent examine the venire panel and strike the jurors averse to your respective clients. The surviving jurors rise, bring their right arms to the square and swear to “duly and fairly try the matter.” When the verdict is read at the conclusion of trial, the result shocks you and your opponent.

In a post trial ritual you and opposing counsel engage any of the jurors who will remain to talk to you. You are shocked at what the jurors thought the evidence was and how they arrived at their ridiculous verdict. They based their verdict on issues you and your opponent never raised and certainly never argued.

Read the first line of this blog. “Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values.” If you don’t ferret out the “imbedded feelings and values” your jury will be ruling on your trial using “untried issues” to decide the case.

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In Trial, a Picture is Worth a Million Dollars

DEATH BY POWERPOINT.

Death by PowerPoint is an oft heard complaint against the imprudent practice of putting slides on the screen and reading them to the jury. I reject that use of PowerPoint and I have the Million Dollar verdicts to support my opinion.

I have suffered through attorneys who take their whole close and import it wholesale into PowerPoint, then read the slides to the jury. We know how boring it is to have someone read a talk to us – imagine having someone read a talk that you are able to read faster because it is projected in a screen in front of you.

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Internal Conflict: Obstacles Are Opportunities

Jesse Wilson, a reader from Colorado (jessekwilson@gmail.com) uses theater to “transform lives and business.” My recent post on “Story” prompted him to email me about conflict in story.

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