Governing principles of cross-examination

• Author: Tod F. Schleier
• Pages: 35-94

PRINCIPLES OF

CROSS-EXAMINATION

1-1

CHAPTER 1

GOVERNING PRINCIPLES OF

CROSSEXAMINATION

I. FEDERAL RULES GOVERNING CROSSEXAMINATION AND IMPEACHMENT

A. Overview

§1:01 Scope

§1:02 Grounds for Impeachment

B. Evidence of Character and Conduct (FRE 608)

§1:03 Character for Truthfulness (FRE 608(a))

§1:04 Specif‌ic Instances of Conduct (FRE 608(b))

§1:05 Related Rules of Evidence

§1:06 Application to Employment Cases

[§§1:07 – 1:09 Reserved]

C. Impeachment by Evidence of Conviction of Crime (FRE 609)

§1:10 Statement of Rule

§1:11 Rationale

§1:12 Limits

§1:13 Corporate Crime

§1:14 Application to Employment Cases

[§1:15 Reserved]

D. Prior Statements of Witnesses (FRE 613)

§1:16 Statement of Rule

§1:17 Application in Employment Cases

[§§1:18 – 1:19 Reserved]

II. OTHER MEANS OF IMPEACHMENT

A. Bias

§1:20 Recognized Common Law

§1:21 Extrinsic Evidence Allowed

§1:22 Application in Employment Cases

[§§1:23 – 1:24 Reserved]

B. Contradiction

§1:25 Most Effective and Common Impeachment Technique

§1:26 Application in Employment Cases

[§§1:27 – 1:29 Reserved]

III. GOALS AND PRINCIPLES OF CROSSEXAMINATION

A. Two Purposes of Cross-Examination

§1:30 Constructive Cross-Examination

§1:31 Destructive Cross-Examination

PRINCIPLES OF

CROSS-EXAMINATION

Deposing & Examining Employment Witnesses 1-2

B. Preparation Is (Almost) Everything

§1:32 Know the Facts and the Law

§1:33 Use Depositions to Prepare for Cross

§1:34 Prepare Trial Notebook

§1:35 In Practice: Tips for Effective Examination

§1:36 Video and Telephonic Depositions

§1:37 Zoom

[§§1:38 – 1:39 Reserved]

IV. CROSSEXAMINATION OF EXPERT WITNESSES

A. Basic Points

§1:40 Goal: Show that Reasonable Experts Disagree

§1:41 Become an Expert on the Expert and His Field of Study

§1:42 Know Case Facts Cold

[§§1:43 – 1:44 Reserved]

B. Challenge Expert’s Testimony

1. Daubert Provides Analytical Framework for Expert Testimony

§1:45 Trial Courts as Gatekeepers

§1:46 Assessing Reliability of Expert Testimony

§1:47 Trial Court Has Wide Discretion to Admit or Exclude Expert Testimony

[§§1:48 – 1:49 Reserved]

2. Specif‌ic Grounds to Challenge Expert’s Testimony

§1:50 Challenge Expert’s Qualif‌ications

§1:51 Impeach by Demonstrating Bias

§1:52 Challenge Bases for Opinion

§1:53 Impeach by Use of Learned Treatises

[§1:54 Reserved]

C. Example: Cross-Examination of Expert—Social Worker

§1:55 Key Facts

§1:56 Strategy

§1:57 Angles of Attack

§1:58 Model Cross-Examination

§1:58 .1 Witness Admits That Factors Other Than Termination May Result in Depression

§1:58.2 Witness Is Not Qualif‌ied to Testify as an Expert

§1:58.3 Expert ’s Opinion Is Based Only on Interviews With Plaintiff

§1:58.4 Expert ’s Opinion Is Based on Incomplete Work and Lack of Knowledge

of Fundamental Facts About Plaintiff

§1:58.5 Expert Did Not Obtain or Review Important Document That Was a

Matter of Public Record and Easily Available to Her

§1:58.6 Expert’s Credentials Pale in Comparison to Opposing Expert’s

Credentials

§1:58.7 Opposing Expert ’s Report Is Accurate and Reliable

[§1:59 Reserved]

V. INTEGRATING THE CASE THEME: THE OPENING STATEMENT,

CROSSEXAMINATION AND CLOSING ARGUMENT

§1:60 The All-Important Theme of the Case

§1:61 Some Themes in Employment Cases

§1:62 Trial Themes and the Concept of Vividness

§1:63 The Case Theme, and Direct and Cross-Examination

FORMS

1-A Motion to Take Depositions Telephonically

1-B Motion in Limine to Permit Use of Video of John Black Deposition

APPENDICES

1-1 Opening Statement With Accompanying Chart

1-2 Chart for Opening Statement

PRINCIPLES OF

CROSS-EXAMINATION

1-3 Governing Principles of Cross-Examination

1-3 Closing Argument