Governing principles of cross-examination
Author | Tod F. Schleier |
Pages | 35-94 |
PRINCIPLES OF
CROSS-EXAMINATION
1-1
CHAPTER 1
GOVERNING PRINCIPLES OF
CROSSEXAMINATION
I. FEDERAL RULES GOVERNING CROSSEXAMINATION 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 CROSSEXAMINATION
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. CROSSEXAMINATION 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,
CROSSEXAMINATION 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
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