Tag Archives: trial

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.

Trial is Like Petting a Tiger

Going to trial is like petting a tiger. The only way I would know that is if I have placed my hands on a live tiger.

The Lincoln County Fair

In August 1996, the Lincoln County fair is in full swing in Star Valley, Wyoming. Star Valley is south of Jackson, Wyoming (which probably tells you nothing unless you have been to Wyoming). During summer Star Valley is verdant green with farms and pasture land from one side of the valley to the other. During winter, the valley is pure white from almost constant snow fall owing to its altitude: 5600 feet above sea level to 7000 feet above sea level. Imagine the most beautiful Swiss mountain valley you can think of. That is what Star Valley looks like.

The Lincoln County fair is a temporary event staged in a city park. The fair offers every country pleasure imaginable including constant country /western music, the smell of livestock mixed with deep-fried foods, rodeos, a demolition derby, a hypnotist show, and tigers. Yes, tigers.

The main midway for the fair is on the city’s softball fields. Near the fields, where the park has trees grass, a six-foot-high chain-link fence encloses a “big cat” display with adult mountain lions, blacks leopards, spotted leopards, and a jaguar. The big cats are lolling in grass under the shade of the large tree in the center of the chain-link enclosure. They pay little attention to what is happening outside the fence.

The display’s curator raises money to support the big cat operation by letting people “play” with tiger cubs for a fee, or if you are willing to part with more, the curator will take your picture with a bigger tiger.

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What Sitting Bull Would Teach Those Who Want to Be Trial Lawyers.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

The Lakota warrior and chief known as Tatanka Iyotake, and as Sitting Bull to the white man, did not display heroism and leadership throughout his life. When he was a young member of the Teton Sioux, he was  awkward and bore the nickname, “Slow.” Despite Slow having killed his first buffalo by age ten, he remained a boy because the Plains society required that he achieve success in battle through a courageous act.

When Slow was fourteen, he watched as his father and others left camp to attack their traditional enemies, the Crow. Slow was still small and too young to be skilled in the use of weapons, but he was anxious to win the respect due to a warrior. Deciding for himself it was time to become a man, Slow mounted a pony and pursued the war party. When he caught up, he announced to his father, “Today I will become a warrior.”

Slow’s father, not wanting to restrain his son’s spirit, welcomed him, instructed him on bravery and wisdom in battle, and handed him a coup stick with which he could strike an enemy and gain honor.

The Sioux set an ambush for the Crow. As the Crow party approached, Slow burst from cover and charged the Crow party. The surprised Crows retreated. Slow overtook the slowest Crow warrior, who dismounted and shot at Slow with his bow and arrow. The warrior missed, and Slow hit him with the coup stick, knocking him over. The rest of the Sioux arrived and killed the Crow warrior and routed the other warriors.

Upon returning to the camp, Slow’s father placed Slow on a strong horse and paraded him through the camp shouting, “My son has struck the enemy! His is brave! I name him Sitting Bull.”

The name was not a coincidence. Sitting Bull’s father had encountered a talking buffalo during a hunt. The buffalo recited the names of the four stages of the buffalo’s life, after which the Plains people modeled their own lives. The sitting bull was the first and youngest stage, and a name of great honor. Slow’s father had taken the name Jumping Bull after the experience. The “new name” bestowed on Slow represented that he had passed from boy to warrior.

I want to suggest to you that law school specifically, and society in general, fail to prepare one to step into the courtroom as a warrior. Unlike the Native American culture where major life changes were celebrated through elaborately staged ceremonies marking rites of passage, we graduate law students barely prepared to attend a bar review course and expect them to know how to try a case. Choruses bemoan that attorneys have lost the skills of the trial lawyer when an attorney, particularly in large firms, rarely goes to trial more than ten times during their entire career.

The rites of passage in Native American culture that marked the emergence of the candidate from training and established challenges to prepare him (it was always males) for rebirth as a new person – possessed of a new status, new wisdom, new identity, and a new name, commemorated the birth of a new member of the culture.

I suggest we adopt a changed vision of what trial is, and how we train people to step into the warfare we call trial. We attend law school with law school professors telling students how to try cases by reciting rules born of fear and the need to control: “Don’t ask a question you don’t know the answer to.” “Ask questions that can only be answered ‘yes’ or ‘no’.” “Always appear strong and in control.”

I call, “Bullshit.” I call “Double Bullshit.”

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Joan Rivers’ Greatest Lesson to Us.

I inherited my love of comedy from my mother. She had two favorites: Phyllis Diller and Joan Rivers. My mother’s love for Joan Rivers spawned my love for her. Every Friday night my Tivo records the latest installment of Fashion Police, Joan Rivers’ last platform from which she launched her blue and irreverent assaults on celebrity foolishness.

While couched in terms of fashion and clothing, Joan’s sharp-tongued and absolutely fearless humor was more about people acting out in the public eye. She succeeded by saying what everyone else was thinking. She was at her best when she ventured (as she often did) into the blue, “I don’t think I’m good in bed; my husband never said anything, but after we made love he’d take a piece of chalk and outline my body.”

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Stories: Campfires and Courtrooms

From man’s earliest times, telling stories has been how we entertained each other late at night around the fire, communicated the joy of the hunt, and shared the pain of loss. As trial attorneys, we are the inheritors of the tradition of story.

campfire

Rather than sitting around a campfire, weaving tales late into the night to enthrall our friends, we now stand in the killing pit we call a courtroom and talk to twelve silent, supposedly non-responsive members of the public who are there to do their civic duty.

I fear that by and large, we as lawyers do not value the persuasive power of story. I have seen lawyers in trial say,

“This case concerns a two-car motor vehicle accident that occurred on December 13, 2000, at the corner of Bristol Drive and Anton Parkway in Costa Mesa, California. The Plaintiff was the sole occupant of her vehicle that was at rest awaiting a red light at said intersection. Defendant’s vehicle failed to stop and struck Plaintiff’s vehicle from the rear.”

Can you hear the snores? Imagine how much worse it would be if that attorney was giving the opening statement in a partnership dissolution case, or an easement dispute, or a trust litigation.

Attorneys’ stock in trade is story. If that is our tool, shouldn’t we know what a story is? Shouldn’t we know how to create a story? Aren’t we like the director of a movie painting word pictures with scenery, characters, conflict, drama, and resolution? Until we think of ourselves like that, we will never fully understand how to present compelling trials for our clients. Continue Reading →