CORPORATE CRIME REPORTER
Chicago
Trial Lawyers Weigh in on Cross Examination
21 Corporate Crime Reporter 12, March 25, 2008
Chicago is not New York.
And it is not Washington.
But where would you rather be?
Exactly.
Think Chicago and think tough guy.
And tough guy lawyer.
Think counterpunch.
Two Chicago defense attorneys – Steven Molo and James Figliulo – have pulled together the bible of counterpunching in the courtroom Chicago-style – Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers (Law Bulletin Publishing Company, 2008).
Molo is a partner at Shearman & Sterling. Figliulo is a partner at Figliulo & Silverman.
The forward is by Scott Turow the novelist and a partner at Sonnenschein Nath in Chicago.
Molo and Figliulo pulled together fifty of the best trial lawyers in Chicago – Turow calls them the “creme de la creme of Chicago’s trial bar” – and asked each to put on paper their thoughts about cross-examination.
The chapters range from the mundane to the spectacularly sweet.
But overall, it’s a special book for lawyers and non-lawyers alike.
As Molo and Figliulo point out in their introduction, there are no pundits in this book. The lawyers in this book have all been in courtroom battles in Chicago – collectively having amassed more than 1,600 years of trying cases.
“We live our lives with people in trouble,” the Molo and Figliulo write. “Whether they are a person charged with a crime, a corporation that believes it has been wronged in a business deal, a doctor accused of malpractice, or a consumer injured through use of a product – our clients are looking for that somewhat vague and amorphous concept known as justice. Trying to achieve that – usually with an equally able advocate the other side – is not easy.”
This book does have a bias – the vast majority of trial lawyers in this book are defense attorneys. The last lawyer – number 50 – is a plaintiffs trial lawyer – Thomas DeMetrio, a partner at Corboy & DeMetrio. Where are the other trial lawyers suing corporate criminals? They exist in Chicago, don’t they?
But anyone can love this book, learn from it the key lessons of cross-examination – and have a good time doing it.
The book includes a chapter from Michael Coffield, who passed away last year – before the book went to print.
The title of Coffield’s chapter – “Winging It.”
“You are not always going to have the opportunity to prepare,” Coffield opens.
Once Coffield had to wing it against his old firm – Kirkland & Ellis.
Kirkland & Ellis had put on an auditor as a witness – and Coffield didn’t have time to prepare fully.
So, he winged it.
Coffield asked the auditor three questions and then sat down.
“You’ve talked to us for a day and a half about auditing,” Coffield said. “Let me ask you this sir. How many times did you take the CPA exam?”
“Three times.”
“What did you flunk the first time?”
“Auditing.”
“What did you flunk the second time?”
“Auditing.”
And then Coffield sat down.
“Sometimes, when you have to wing it, you go back to the old rules – make it short, make it sweet, and quit while you are ahead.”
Many of the lessons given to us by these lawyers will apply to our lives well beyond the courtroom.
Take the insight of Peter John, a partner at Williams Montgomery & John in Chicago.
John wrote a chapter title “Cross-Examination and Jury Ego.”
In presenting your case to the jury, John’s take away lesson?
Lead but don’t feed.
“The more strongly you argue a position, in some instances, the less likely it is that the jury will use that position for its main decision process since their ‘jury ego’ requires them to find the answer based on their own evaluation of the evidence, not yours,” John writes. “It is my theory juries take that approach because it is their decision to make and they want it to be their own decision, not one simply repetitive of the advocate’s arguments.”
In a similar vein, Winston & Strawn’s Dan Webb shies away from screamers.
“Anytime I hear a lawyer scream and yell in the courtroom, then I know the lawyer is a failure,” Webb writes. “And the reason I know the lawyer is a failure is because I know the jury will perceive the lawyer as a failure, and that’s all I care about.”
Sidley & Austin’s Charles Douglas writes about cross-examining a Nobel Prize winning economist in the courtroom.
“I believe the jury enjoyed the spectacle of a Nobel Prize winner stumped when we asked for an explanation of why movie theaters had cheaper tickets for kids and seniors,” Douglas writes. “We all know that theaters do this and we generally accept it as benign. And yet a famous economist found it mysterious.”
A chapter titled “Cross-Examination of the Catastrophically Injured Plaintiff” was written by Barry Montgomery of Williams Montgomery & John.
“In my experience, too many defense lawyers consider it necessary to cross-examine the catastrophically injured plaintiff even when there is no defined purpose or goal to be accomplished,” Montgomery wrote. “Attempted impeachment on minor points or non-issues is a mistake and is the type of conduct that draws resentment against the defense and enhances jury sympathy for the plaintiff. Jurors instinctively seek to protect the catastrophically injured plaintiff from unwarranted attacks of defense counsel. Jurors do it without even knowing they are engaging in this protective attitude.”
Molo makes the point that “every trial lawyer ‘borrows’ from other trial lawyers – whether it is stories we tell in final argument, approaches we use in cross-examination, or the way we may stand in the courtroom – none of us is completely our own creation.”
Here are the best of the best from the Windy City – laying at least some of it on the line.
Counterpunch away.
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