Most Lawyers Mess This Up—Direct & Cross Examination Secrets

In this episode of Trial and Error with Donte Mills, we break down one of the most powerful skills in any courtroom—direct and cross examination.

This is where cases are won or lost.

Attorney Donte Mills explains how trial lawyers control the narrative, expose weaknesses, and use questioning to shape what the jury believes. Whether you’re in the courtroom or just want to understand how persuasion really works, this episode gives you a real inside look at the strategy behind effective questioning.

You’ll learn:

• The difference between direct examination and cross examination
• How lawyers build credibility with their own witnesses
• How cross examination is used to break down the other side
• The biggest mistakes lawyers (and witnesses) make
• How questioning strategy can change the outcome of a case

This isn’t just about law—it’s about control, communication, and thinking three steps ahead.

Because in the courtroom, the right question can win everything…

and the wrong one can cost you the case.

Trial and Error.

👍 Like | 💬 Comment | 🔔 Subscribe

Drop a comment: What’s a mistake that taught you the biggest lesson?

New episodes every week breaking down:

• Lawsuits & legal strategy
• Business & negotiation tactics
• Real-life decision making

Trial and Error with Donte Mills

Turn experience into advantage.

Transcript

SPEAKER_00 0:01

So I'm on trial in Indiana. And I go into the courthouse or I pull up into the courthouse. I'm gonna rent a car. Pull up to the courthouse to see it's a like a smaller county-style courthouse, and there's a bunch of horses and buggies outside. What in the world? So I go into the courthouse and I I I the officer is at the door. I said, Horses and buggies? What's going on outside? Oh, it's Tuesday. Um, this is Amish Day here at the courthouse. Uh we host um the Amish community here. Whenever they have an issue, which happens often over the weekends, um they we designate Tuesday for them so they come in and whatever laws they believe have been broken, you know, anything that's occurred, we have the Amish here and we walk through their issues on a Tuesday. And I said, I have to pick a jury here. Dear God. Um, yeah. So uh I start picking that jury in Indiana in a very remote location, let's put it like that. Uh and we start picking a jury, and I'm and I'm doing what I do, controlling the narrative, kind of angling uh my presentation, and a judge pulls me to the side during jury selection. Mr. Mills, we um you're being pretty aggressive here. Uh we don't there's no need to be that aggressive. You know, we're we're all uh working together. We want to um make sure that um you know everybody is just kind of on the same page. I said, Judge, I I respectfully, I appreciate what you're saying. I absolutely will handle anyone respectfully. I I will not go over the top, I will not get out of line, but I'm gonna be an advocate. That's my job. I I I can't, we're not friends here. Uh, you know, we can be friends outside of the courtroom, but that's not my role. My role is not to get along with uh opposing counsel, and I wasn't doing anything to um, you know, really stare the pot. I was just being an advocate, right? Or saying words and my verbiage, the words that I used were making it clear that I was right and the other side was wrong, and and then and that's what they had a problem with, and I'm never going to accept that. So I said, Judge, I I hear what you're saying, I respect what they're saying, but I I can't do that. I have a client that I work for, um, and the client is counting on me to make sure that this jury understands what's happening here. Um and we went on, we finished picking the jury. Uh the case ended up resolving. Uh it was a pretty high-profile uh criminal matter. Um, so I I won't get into the result, but the case ended up resolving in our favor. Um but in that moment I knew that I had to stand up for myself, I had to stand up for my client. And I said, even if you know I'm in a situation because I do, I travel around the country a lot and I've tried cases in a lot of different places, and there's a different feel to everywhere you go. Some judges, especially in New York, that they appreciate the advocacy, they kind of get into it, and some judges like it to be more um kumbaya, let's say. Uh but in that moment I knew I couldn't do that, and I'll never do that. Uh, and I try to be as respectful as possible, but there will never be a situation, I'm telling you, where uh I'm someone's counsel, and I'm trying to be nice to the other side to my detriment, where I'm not trying to be forceful in my persuasion. Uh and again, that doesn't mean ignorant or or or belligerent or loud or or obnoxious or rude. Forceful in my persuasion, persuasion, using words like there was no reason for them to do this. They didn't have to do this. They're lying to you. Um my client didn't do this. Uh, you know, those kind of things. Instead of, well, you know, we'll see what happened. Here's the facts, let's just see what happened.

unknown 4:39

No.

SPEAKER_00 4:39

Um, there's no reason for any of us to be uh in the middle unless we're a judge. If you're a judge, you can be in the middle and and you know make sure that both sides present, and your job is to kind of regulate. If you're an advocate, advocate. Always. If you are an advocate, advocate. Your client deserves that. Um, that's your profession. Uh, and that's what you're supposed to do. That's like nobody was told Kobe, hey guy, you don't have to play this hard. What are you doing? I you know, this is uh this we're having fun here. Kobe Bryant said, No, I don't, no, this is my job. Uh you know, we can have fun when we shoot hoops in the backyard, but I I get paid to do this. I'm gonna dominate you. He wasn't a rude player, uh, he wasn't disrespectful. Hey, maybe sometimes he was. But he said, My job is to dominate this scenario. I'm gonna dominate this scenario. That's the mama mentality that people talk about, right? As advocates, we have to have that mama mentality. Everything that I say is gonna be purposeful, everything I say is gonna be for a reason, um, and everything I say is going to be to advocate on behalf of the person I'm there for representing because I owe that to my clients. So, you know, today we're gonna talk about um examinations and direct examinations, cross-examinations, uh, you know, how to make them effective. Uh, I think that goes beyond just trials, it goes into questioning witnesses and depositions, it goes into conversations that you have about a case, even with your own client. There's a way that things have to be framed where you're not just asking questions for the sake of asking questions, and it starts with the intake. And there's been times where I had a client and and you you ask them what happened, and they go into making excuses for the other side or referencing it. Oh, so so what happened to you as a result? What's your injury? Well, you know, it's not that bad. I I just no, no. I I I cut them off.

unknown 6:53

No.

SPEAKER_00 6:54

We are not using that language. Because what you're gonna do is you're gonna train yourself to express your injury in a way that's not that bad. Yes, we're humans, we adapt, and when things happen to us, especially on injury cases, you don't want to wallow in it. Um I don't think anybody really enjoys some people do, but most people don't enjoy doing that. We're not malingering, but it's also not the time to just I guess tough it out. This is the time where you have to express what happened to you, how why you feel this, you know, what you're going through as a result of this accident. So I'm gonna jump in immediately. My first conversation and control the narrative and say, no, we're not talking that way. When I ask you what injury you received because of this accident, you're not leading with what's not that big of a deal. You had fracture, you had surgery. You had to wear a cast, you couldn't move your arm for an extended period of time, you couldn't work. There were things that you couldn't lift. You still have trouble now. When you wake up, you have to work your shoulder back into movement. You can't pick up your child, you can't play uh the sport that you loved playing your entire life. You've trained yourself now. When you go grocery shopping, you use your offhand, you just don't even bother using this arm anymore. That is a big deal. It's not a situation where nothing happened to you. But if you frame it that way, that's what the jury is going to hear. That's what people are going to believe. So I want to get in your mind right now that this isn't about you trying to minimize your experience. That's not what you're here for. You're here to make it clear to everyone what happened to you and what the result of that accident was, the impact that that accident had on your life. And my job is to make sure that that's what comes out. But I can't go to a jury telling them in opening statement or summations, hey, you're gonna hear somebody who was really impacted by this, and then you get on the stand and you say, Oh, it's not that big of a deal. So, so yeah, the only thing that really I can't do is, or, or you know, I most of the time I'm good, but it's just sometimes when I wake up I can't move my arm. What? What are you talking about? That's not normal. So you shouldn't talk about it in that way. So, yes, we can talk about trial examinations, uh direct examination, cross-examination, but that starts way before you get the trial. Again, going back to that basketball thing, you're not gonna play your hardest, you know, in a game and be magical when you haven't done anything working up to that point. Let's remove Alan Irison's you're talking about practice speech. Um, that was very nuanced and specific for his situation. Uh but uh let's change that with you practice how you I mean you play how you practice. Right? I like that one better. Um and I think that translates even in advocacy, not just for your client, and we're talking about it, but for you as well. If you're talking about it, having these conversations with your client as if it's not a big deal, and then all of a sudden we're gonna turn it on when you go in front of your adversary or a jury and and try and in your mind now convince yourself that what your client has experienced shouldn't have happened to them, it's too late. Because words are gonna slip out that minimize the situation, the jury's gonna pick up on that. This guy doesn't think that's a big deal. Why should I? That's a disservice to your client. And it starts with you not letting your client know that they have to control their own narrative. This is a this is a full process. Being a lawyer is not easy, you can't just kind of sleepwalk through the process, the discovery process, the depositions, everything else, and show up either for trial or show up for a settlement conference or mediation and say, hey guys, uh I know we've been talking about this before, but but I'm telling you now, this is a big case. It's too late. They've already framed it in their minds. There hasn't been a situation where I got on the phone with any adversary, any any insurance adjuster or anything like that, um, and didn't fully express what was going on with my client. Because if I leave a situation or leave a conversation with one of them where they don't feel like this is the most important case in the world, I'm doing my client a disservice. I have now allowed them to believe this is not the most important case in the world. So every phone call I have is oh yeah, yeah, um, okay, yeah, alright, we're gonna schedule depositions for such okay, that's good because here's what my client is going through. Maybe hard for them to get there because every morning when they wake up, this is their routine that they have to go through. So let's make it a little bit later in the day. Let's give them time to get themselves together. Or are you gonna see when my client gets there? This is the situation. Every time I talk about a case, I want to make it clear what my position is. I'm not gonna give you the upper hand of the allowing your brain to think it's not that big of a deal. Because then when I try and have to convince you that it is, you're already set in your ways. But if I've been chipping at that, and every conversation, just letting you know, here's what's happening, here's why you need to take that serious, here's what I'm gonna do to you when we get in court. You know that, or that's already in your mind. So when we get to that settlement conference, you're like, I don't want to really go to court with this dude. Let me give a little bit more, even though I don't want to, um, because we should probably get this one done. That's what you're creating as an advocate. That's our responsibility. So when we talk about um examinations, again, we're starting with that opening conversation. We should be assessing the case as we hear the facts, right? We're hearing the facts, we understand what happened, okay, to the client. Because the client isn't a lawyer, the client has come to you for direction on what you need to do, what you need to uh what the client needs to do, how they need to present this, uh, what needs to happen throughout this process. They're not attorneys, they come to you for that direction. So they're open to listening to you, they should be. If you don't have a client that listens to you, maybe it's not the best relationship. You shouldn't be their attorney. So it's your responsibility when that client comes in and says, okay, this is what happened to me, you reassess, take it all in, repackage it, and then give it to the client and say, Listen, every time somebody asks you about this case, I don't want you to start out that way. I want you to say, This is what happened to me, and here's how I'm dealing with it. Right? You frame it the right way so that they get used to talking about that case that way. That way, when they're on the stand during the trial, which is it could be a year, two years after the accident, and you're right before trial trying to prep them to make it clear that, okay, no, you actually have to say that you've been through this, this, this, and that, and they're hearing that for the first time. Clients get nervous when they're on the stand. Remember, they're not attorneys. Most of them have never been in the courtroom before. Certainly, most of them have never been on a stand before. So they take that stand, you tried to give them a prep session a day or two before and convince them, okay, this is the mentality you have a day or two before, they're gonna get on that stand, they're gonna panic, and they're gonna revert back to, oh, it's not that big of a deal. You know, all I have to do is, you know, I just take some medication, then I'm fine. Because that's how they're used to talking about it. And you've allowed that through the process. So now by the time they get to the point where everybody's listening, they're gonna say the same thing they've been saying. We are creatures of habit. So every conversation you're having with your client, from that first time that they tell you the facts of that case, you're redirecting their thought process and saying, no, this is something that happened to you. So when somebody asks me, your friends ask you about this accident, what are you telling them? Well, I'm telling them, no, you make it clear to them, there's no reason a lot of your friends. You tell them, man, this is you know, this is how it's infected, uh, impacted me. You know, I can't work anymore, right? You know I can't lift anything. I may need some help when I go to the grocery store because I can't carry anything. Hey, man, you ever just, you know, when I wake up, it takes me about 30 minutes before I have full use of my leg. Is there anything you ever dealt with? I talk to your friends about it. Whenever anybody asks you, hey, what happened in an accident? Here's what I want you to go through. That way, by the time they get to the deposition, by the time they get to the trial, by the time they're on that stand for direct examination, and you're asking them, tell this jury the impact that this accident has had on you. Tell them some things you can't do that you could do before, some limitations you have now that you didn't have before. It's already in their mind, it's already in their thought process. It's processed already so that even if they're nervous, they can spin it out to the jury. That's the preparation that you have to do to make sure your client is ready to advocate for themselves. That's gonna be one of the only times that they can do that when they're on the stand in a dep in or in a trial or in their deposition. And I tell my clients all the time, especially in depositions, you know, uh, you're gonna walk through, and we all uh, you know, you you know we we have the sense of how depositions are gonna go. They're gonna start with pedigree questions, just getting a background of your client, um talking about uh, you know, what who they are, who they live with, where they work, what they do on a normal basis, what hobbies they have. The reason you start with that in a deposition is because you want to get a cadence, you want to build a rapport with the witness that you're questioning, and all good lawyers know to do that. You build this rhythm and the questioning. So when it gets to the tougher stuff, as the attorney, you know how you need to maneuver with that witness. So I prep my client that way. I say, first they're gonna walk through things that you already know, your history, your background, because they want to get a sense of who you are, how you talk, how you answer questions, how you respond, how nervous you're gonna be, how you're gonna come off in front of a jury. That's what they're watching for. But you know all those answers. There's no reason to be nervous about that when somebody asks you your work history. You know that better than everybody else. This dude doesn't know, this woman doesn't know. Right? You're the expert of yourself. So you should start off the deposition comfortable because they're gonna ask you questions about yourself. You know who you live with, right? You know how old your children are and what they do and what your spouse does, and all of that kind of stuff. There's no reason for you to be nervous answering those questions because you know that. Then the second part is gonna be about liability. Let's say we're talking about an accident case. You know, what happened to you? Uh you know, what how did the accident happen? Whether it's a car accident, a slip and fall, trip and fall, construction accident, medical malpractice, whatever it is, they then go from your pedigree, your background, to how the accident happened. Um, and a lot of that uh, you know, will come from police reports, accident reports, things of that nature. But your client should be comfortable in that dance at that point, and a lot of times it will be their first deposition, but your client should be comfortable and they'll know that you prepped them well because they'll see that transition from the background information to how the accident happened, and that'll give them confidence. Like, okay, I have this roadmap, I can do it, I know where this is going. Um, and then after that section, talking about how the accident happened, they ask you what the result of that accident was. If you were in a car accident, what happened to you as a result? If you tripped and fell, what happened to you as a result? If you were working on the job and you fell off a ladder, what happened to you as a result? That's gonna be the injury in those situations. Um, and when you get to the injury, I tell my clients a lot of that is gonna come from the medical records. I'm not expecting you to remember on September 23rd, I had disappointment with the doctor. I complained about this, um, and that's when a doctor gave me, you know, a sling or pro you know an injection. I'm not expecting my clients to memorize their medical history, especially if they've been a lot, it's just too much. So I tell them we can rely on the medical records, they have all your medical records, and so do we. Your doctor is going to come in and testify, or a doctor is gonna come in and testify on your behalf. Uh, and we can rely on them to walk through the medical records because the good thing about it is it's notated. All right, every time they go to the doctors, the medical records are gonna indicate that. It's gonna indicate their complaints, it's gonna indicate the type of treatment they got, it's gonna indicate their diagnosis, their prognosis, any medications they were given, any treatment that was given in response to the complaints they had that day. That's going to be in the medical record. So I tell my clients, it's not a memory test, I don't expect you to remember that for every time you went into a doctor. But the important part of the damages section of the deposition, and the part where I give you free reign to express yourself, is two questions that you're gonna hear. Is there anything you can't do now that you could do before? And are there any limitations that you have now that you didn't have before? There's a big difference in those two. One is that you can't do, and one you can do with limitations. We're humans and we adapt. We're very, uh just humans, we it's incredible how much humans adapt. Incredible. I mean, you can, you know, I've had clients that lost their leg, their arm, um, whatever it is, and you see them navigating life one or two or three or four years later in a manner that they're comfortable with. They train themselves how to operate without. It's in it's unbelievable. Uh just the human spirit, the way we can take a situation that happens to us and not move on, uh, but adjust. Um I think it's incredible. And I get a f a first row seat you know at that often where I I get to witness that. You know, I get a client, these cases take two, sometimes three years, and a lot of clients I get right after an accident happened. And just the experience of a client, I can think of a few in particular that either lost a limb and you go and meet them, you know, whether it's at the hospital and when their family is just distraught and don't know what to do because they can't work now and they don't make they're not making any money, and um you know they're just completely falling apart. You know, they've never imagined life without a limb, and and just they don't think they'll ever be able to make it or recover, or and that initial period is really, really tough. It's devastating. The pain they experience, um, just the loss of that, and there's there's other components that come with losing a limb, um phantom pain, things like that. A lot of that never goes away. Um, but right after the incident, obviously, is when it's just concentrated and people really experience this loss. And in a lot of cases, we deal with there's loss of life, um, which obviously is extremely difficult for the family, but short of loss of life, when you have significant injury like that, and just the immediate impact it has on you. Burn victims is another one where I can think of clients that I have right now that have burns over 60-70% of their body, um, it's difficult. Just the pain daily, the the skin grass, all of that, and they feel like that it's never going to be okay. Uh that's significant, but part of the process, because it is a generally a two or three-year process, oftentimes, by the end of that first year, you just see they're starting to come out of it. The end of that second year, um, they're starting to figure out a way to be themselves again. The end of that third year, you see them trying things that they weren't trying before, and and trying to maneuver about life because they know life is just different now and they have to be different. It doesn't make it okay. I don't think it it it the value of the case goes down because they're trying to figure things out for themselves and the rest of their life. I think the value of the case, I truly believe this that the value of a case goes up when a jury sees you trying to get past it. I think if a jury sees somebody that says, Oh, I was in this accident five years ago, three years ago, whatever, and I've just sat around since. Most jurors won't feel connected to that. So people think, oh, you know, people malinger during cases. That's not true. Generally, that's not true. We don't even know as a people, most of us don't know how to malinger. Think about it when you have you ever been told like you've sprained something where it didn't even have to be a significant injury, but the doctor says, Alright, do this for a week, and two days you're up and about, and you're supposed to just sit down somewhere. As people, we're just not made to malinger, and I don't think people malinger that often. Now, in a lot of these cases, we hear about the extreme bad cases, the person who just malingered and did something crazy or just faked an injury and all of that, and we assume that that happens across the board, but you hear about that for a reason. You hear about it because it's rare, it doesn't happen often, and it's isolated. That's why those things get highlighted. If that happened every single case, it wouldn't be highlighted, right? Because it'll just be every case. When you hear about people doing that, it usually means that's the exception to the rule. I can tell you, most people are just they're just not made to malinger. Um, in fact, people try to recover and try to do things too soon more often than not soon enough. Um, and I I I see that all the time with my clients where they're like, Yeah, my doctor said I can't go back to work for you know six months, but there's no way I can sit home for that, I have to make money for my family. I have to do this, I have to do that. So I'm just gonna go in, I'm gonna try and do this on light duty, I'm gonna try and I told my supervisor that I can only do this from this time, I can't sit for that long, but I you know there's something I can do in the yard, then I must come back to and what am I gonna say? I know it's not to their benefit health-wise. I know it's not to their benefit for the case, but what am I gonna say? I I can't stop somebody for trying to provide for their family. I can't do that. Um, so a lot of times that translates to then we go into court and the defense attorney is standing up saying, Well, they went to work three months after this accident. How bad could it be? When in reality, it actually made the situation worse. It took them longer to recover. The amount of pain they had to deal with every time they got home from work. When they woke up in the morning, what the routine they had to go to to be able to get in a position where they can go to work for eight hours a day is should be unbearable. But they did it anyway, and that's what our job is to explain to the jury. That's what our job is to get the the our client when they're on the stand for direct examination to explain, and we do that by making sure that we're controlling that narrative, and even if the fact, listen, we talked about this before, where we talked about in a different episode, we talked about controlling the narrative, and I'm I I will go back to this a lot in that that fact game, that the fact game that I play. In this situation, the fact would be you went back to work three months later. That's the fact. They'll have employment employee records that show that. I can't deny that. You know, I it's just a fact. They went back to work three months later. How do I control the narrative on that? Well, it's my job when a client is on the stand and say, Well, listen, you're saying that your life was impacted. You're saying that you could, you know, you couldn't move. But three months later, you went back to work. How do you explain that? I'm doing that on direct examination. Because I want my client to then be able to say, I had no choice. I had a family to feed. If I don't work, I don't get paid. Or if I don't get if I don't work, I get paid significantly less. Yes, it may be workers count, but I gotta wait around for that. It's gonna be less than I make. And and just the way my uh uh bank account is set up, right? Um I I can't, I don't have the money to move from savings to checking to pay this bill and pay. I don't have it. What am I supposed to do? And if a jury hears that, now they understand, now that fact of you only you you went back to work three months after this accident, now they applaud you for that. And they say, Oh, they're working despite the fact that they're in that much pain, despite the fact that now they have to take twice as many pain pills because of what they're putting their body through on a daily basis. Despite the fact that it took them a little longer to heal, because a doctor normally says six months you're good, but it took them nine months, almost a year before this injury fully healed because they were putting too much pressure on their body. I understand it now. I'm not gonna penalize this person for working to feed their family, but that comes from you controlling the narrative as the attorney and making sure that when the client has the opportunity to explain that that they do, that you're giving those questions to them. And you're asking those questions as if you're on the jury and you have that concern. Wait, you said you went back to work at the three wait, why? Why? Why did you do that? When I'm talking to my students, I always describe direct examination. You want to ask non-leading questions. Uh that's something that you hear often. Oh, non-leading questions, you can't lead the witness. Generally translates to questions, you know, that's just open-ended, uh, where you're not inserting the answer. So, easiest example is it's a car accident case, a non-leading question would be, what color was the light? A leading question would be the light was green, right? The first one, what color is the light? You're not including information. You're allowing the witness to give the answer. The second one, oh, the light was green, right? You're including the answer to the question in there, and you're including that information. Um, that's not an open-ended question, that question can be objected to, and that question shouldn't be allowed if you're on direct examination. You want to ask non-leading questions. Um, but deeper than that, deeper than non-leading versus leading, the way you want to process direct examination is you want to gossip. Think about gossiping, even with your client, because jurors are regular people. They're not most times attorneys, and most times I don't want an attorney on my on my panel, you know, my in my jury, because the other jurors will think they're experts in this and will follow generally that attorney's lead, and that attorney may not be right. You don't want everybody following one person in the jury room, you want everybody having their own independent thought because I think that's what cars out a lot of the nonsense when people bring their own ideas to this, their own experience. So when you have someone that may be deemed an expert, even if they're not trying to be, somebody may just say, Oh, their attorney, so whatever they say must be right because they know how the law is supposed to work. That's not necessarily true. They may practice a whole different kind of law, they may just be wrong on this fact pattern, but and they may not even be saying, they may say, Listen, you know, I only I'm only one opinion, but there may be people in that room who look at an attorney and think they're you know the expert. Um, so I I don't enjoy having attorneys on my uh jury for that reason. Um but when you're on that direct with your when you're on that direct, you got to think of what jurors are thinking about because they're the ones that have to go back into that room with you, uh back into that room to deliberate. They're the ones who have to process the information. So you're thinking as a juror. So when that your own witness is on a stand on direct, just think gossipy, gossip with them. And then what happened after that? And then where you go? Why you do that? When did you do that? How you do that? What'd you do after that? Where y'all go after that? I'm adding voice for emphasis, of course, but that's the nature of the questions, because that's how we think. So if they say, Oh, I had to, you know, I was gonna turn right, but instead I turn left, the immediate thought is what'd you do after that? And then where you go? And then what happened? Why do you do that? That's the thought process you want to have on direct examination. You're gossiping. Your job is to get out information in an informative way, um, in a persuasive way, uh, in a way that you're allowing your witness to be themselves and provide these answers and have a genuine dialect and communication with the jury. What you don't want to do is get up there and just be lawyerly. You're gonna confuse your client, you're gonna confuse the jury, you're not gonna allow them to establish a relationship with each other because neither one is gonna know what you're talking about. You're the only lawyer in that interaction. So, why would you want to speak like a lawyer and isolate yourself? You want to have a genuine conversation with your client and allow them on direct examination to get everything out. And then what? And then where you go? Well, time did you get there? How did y'all do that? Why did you do that after that? And when you do that, you can include positive and negative because things are gonna come out that may not be in your favor, that you know the defense is gonna come up. Well, the defense is gonna ask you about, or or there's a picture of showing, you know, what you showing you with doing this. Or there's this angle here where it looks like you kind of may have run the light. Did that happen? How do you know that? How do you know that didn't happen? Oh, I know that because you know I looked up at the last, it was green before. You're giving your own uh witness the opportunity to flush these things out before they get on cross-examination and can be hammered with them. So then when the other person gets up and says, Well, there's a picture of you, well, like I said on direct, that picture really shows this. Or here's why that, as I said on direct, here's why that picture is misleading. I already told everybody that. So when they get up screaming and say, Oh, I got this picture that shows you doing this, you know, for example, the jury's like, Well, they already explained that, it's not that big of a deal. You stole in the thunder, and not because you're being loyal, but in a way that you're gossiping with your own client and bringing out the information fully in front of the jury in a way that everybody can digest it and have a normal conversation. We talked early in another episode about being yourself. That's where that importance comes in. A lot of attorneys like I gotta sound like a lawyer, I gotta act like a lawyer. You are a lawyer. So, however you act, however you sound, is sounding like a lawyer.

unknown 36:01

Right?

SPEAKER_00 36:02

However, you act is acting like a lawyer. You're a lawyer. So if you get up there and you can relate to your client and get them comfortable enough to have a regular conversation that the jury understands, not only are you acting and sounding like a lawyer, you're acting and sounding like a phenomenal lawyer, an effective advocate. You're acting and sounding just how your client needs you to act and sound. So you should be comfortable doing that. And not try and get up there and be the sound the fanciest, sound the use the you know the right uh legal terminology. Nobody wants to hear that, nobody understands that. Imagine you go to the doctor and you say, Doctor, what's wrong with me? And they say your fibul is connected. Like, wait, doctor, what? What is just tell me what's what's wrong with me? Oh, your leg broke. Alright, thanks. Thanks, doc. It's the same thing. It's the same thing. They're medical doctors or jurist doctors. Our job is to translate. Yes, we have this specialized knowledge that allows us to operate in this space, but when we're dealing with everyone else, if we are effective, that means we're making them comfortable enough to understand what's happening. That's how we have to operate. That's how we should conduct the direct examination. Cross-examination is going to be much different. Cross-examination, you're not giving kind of those softball questions. You're not gossiping because you're on cross-examination, you say, Well, why don't you do that? And they say, Well, here's why I didn't do that, and then your case is shut. Because now they provide a solid reasoning and rationale why your defense shouldn't work. Um, so it's going to be not necessarily more adversarial. That that doesn't, you don't always have to be adversarial. Um, but it's going to be more directed and pointed, where you're leading them to say essentially yes or no. Do you agree with this, yes or no? And you're getting in there, establishing facts, and moving on. Where if it's a green light, right? Or if it's a car accident case, you don't necessarily say, well, what color was the light? You definitely don't want to say that. They're gonna say it was green. You also may not want to say uh the light was was red for you, right? Nine times out of ten, I'll say no, it wasn't red. So what you do is you you ask pointed questions without going into that ultimate question. You can say when you were coming to the light, you you testified that um you were you were looking to the left because there was another car on your left, right? You testified also that you had your radio on. Uh and you testified that um you didn't hear anything uh before the crash happened, right? Yeah, I didn't hear anything. And you might want to close it there. And then when you get in summation, you can say, listen, they told you they were looking to the left, they had their radio blasting, the person was honking the horn, letting them know that they were gonna hit them because they ran a red light. They didn't hear it. This was a distracted driver that wasn't paying attention and clearly ran a light. And you can get there and you can make that argument not by going into the ultimate question with the witness on cross-examination, but by just establishing facts that now you will take and control the narrative with. You don't have to prove your case on the cross-examination. Very rarely do you do. That's for TV. Those TV moments where you can't handle the truth on cross-examination, that doesn't happen. Most people are gonna stick with whatever their story is. You can't change that. But what you can do is point out why that story doesn't make sense without going into the ultimate question. You point out other things that you then bring together when that person is off the witness stand and they can't give some explanation for. They can't say, Oh, oh no, yeah, yeah, I was looking to the left, but then right before I look to the middle, like, okay, yeah, you're right. Like, I'm not even gonna give you the opportunity to say that. I'm gonna ask you, you testify you're looking to the left that you know at some point you're looking at the car over there, yes. Now I have the opportunity in summation to bring everything together and say, here's what that means, and it's going to look different. I was on trial once, and the witness, this is a car accident case, and the case was my client uh was crossing the street, was struck by a vehicle, had a really bad injury. The testimony from my client is he was in the crosswalk, he was walking in the crosswalk, which would have given him the right of way. This car was speeding down the street and hit him. The car testified, and the driver of the vehicle testified that he was driving down the street. Somebody came from in between two-parked cars, not at the crosswalk, but there was a car after the crosswalk. He was behind that car in front of another car. So came in between two parked cars, not at the crosswalk, darted into the street, and that's when he hit him. There was, you know, one-on-one. He said, she said, Well, there was this witness who was across the street, kind of caddy corner to where the accident happened. And I knew this witness was gonna come in, and I knew this witness was gonna say that she didn't believe my client was at the crosswalk. Um, and I had to deal with that. The problem was, this witness, um again, true story, they're all true. I have no reason to make this up. I couldn't if I wanted to or try. Um this witness gets on the stand. And uh, you know, the question comes out, those pedigree questions of what's your name, who you live with, what do you do? Oh, I'm a nurse. Uh, you know, I I I'm a nurse, I've been a nurse for years, just my passion, taking care of people, and uh, you know, just making sure that everyone is okay. Uh do you do anything else? Yes, I volunteer uh at I think it was like a homeless shelter or something on the weekends, and um, you know, I make sure that you know the people have what they need. I'm there, I'm taking care of people. Um essentially, long story short, Mother Teresa was on the stand. And I knew that she was gonna say something detrimental to me. So I can't I can't let the jury love her and also give credence to what she's saying because if they do, I lose. She's saying she doesn't remember my client being at the crosswalk. If they believe that, I lose. So they go through direct examination. I get up on cross, and I my job is to control this narrative with this set of facts. And I start off by telling her how much we appreciate what she does, how she takes care of people. That's important. I and I believe that, and I told her that. Um I then knew that I couldn't just flat out say, you're lying, right? I that would make no sense. The jury would hate me because I call Mother Teresa a liar. But I couldn't let her testimony stand when it didn't really make sense, and I knew it wasn't true, but I I I I had to figure out a way to get there, get to the argument I needed without turning off this jury. So what I said is, um I I know you you do that, and that you you want to help, right? In fact, you're here because you want to help. You volunteered to be here. Um And you knew that you know you were there was an incident that occurred, you were in the area, and you want to make sure that whatever you experience that you let us know. There's no ill will, there's no connection here, you have no bias, no reason to make anything up, right? No, no, I don't. You know, I just want to, you know, tell my story, and whatever happens, you know, I just want to do the right thing. I said, I I appreciate that. And I said it's important for you to want to do the right thing and get a story. Yes, it is. And I said, um, on that day, you were across the street, right? Yes, and I said, uh, you weren't involved directly in this accident, no. I said, you know, when you um when you experience something, you develop a memory of it, right? She said, yes. And I and I said, uh, even with an accident, you experience an accident, you're gonna remember what happened in an accident because you experienced something that's out of the norm, yes. I said, but you didn't see this accident happen. No, no, no. I I turned around when I heard, you know, the the commotion acting. So I said, I I want to focus your attention on what happened before the collision. I said, you would agree that's that's the most important thing, right? Um, yes, it is. Um I said, I you know, you understand that my client, you know, he was in the crosswalk, uh, but but there's testimony that the driver is saying he hit him before the crosswalk, but his body, you know, after the incident, all his body ended up in the crosswalk, but he was hit prior to that. Yes, yes, I do. Um, and I said, when you turned around after you heard this, um, and you saw what happened, uh that's when your your your kind of flight or flight, your your flight or fright, what is it, flight or fright or flight? Fight or flight. Something kicked in. Yes. But I said, what we want to know is what happened before the accident. And yes, you're saying you're looking that direction. You don't remember my client being in the crosswalk before the accident, but you would agree with me that there was no incident prior, so there was no reason for you to develop a memory of that scenario until the accident happened. I said, so if we're just having this conversation, you would agree with me that you cannot describe for me exactly what happened before the trauma, before that accident. Um, you were on the other side of the street, you said you looked over, you remember people in the area, you don't necessarily remember my client being in the crosswalk before the accident, but you agree with me that um you wouldn't. There would be no reason to. There will be no reason for you to drill in your mind where my client was walking because he just would have been a person walking on the street, just like hundreds of people that you see every day walking on the street. And if I ask you where someone was, you wouldn't remember because nothing memorable happened. Yes, done. When I get this to Mason, I say, look, we thank her for coming in. She wants to do the right thing. She wants to tell you what she experienced as a result once this incident happened, or when this incident happened. But because nothing happened yet, she can't tell you where my client was. She told you when her memory kicked in. So I don't want you to blame her because I think she ultimately wants to do the right thing, and she's trying to piece it together so that she can be helpful. But we also can't give that credence to her conversation and what she's telling you because there was no reason for her to lock in her mind where my client was until the accident happened, and when she turned around, it was over already. He was where he ended up, and that does not mean she knows where he began. And it's not because she's a bad person, she's not lying to you. I don't think she's lying to you. I think she's developing her memory or trying to recreate something that she just doesn't know, and she's filling in blanks and she's wrong. And here's why we know she's wrong. The jury ultimately found in our favor and was told, hey, I was told by the jury that it was close because they believed my client's story, because really the facts bear that out. Um, where he landed and um you know, things like that. So they believed my client's story over the driver. But they said when that witness came in, at first they believed her and they thought she was right, and they thought that that meant my client was was wrong and made it up, and they were ready to rule to decide against them. But when I showed them that there was a possibility that she just was trying to be helpful and trying to you know provide information, she may not have been lying because they never would have believed she was a liar, but that she was just wrong. And I was able to do that through cross-examination. Um, so we have to realize that in that angle that or in controlling the narrative, there's ways to get to that in every situation. Every situation is going to be different. Sometimes you have to be aggressive, sometimes you have to be direct, sometimes you have to be roundabout. But in cross-examination, you don't have to make your case, you just have to open that argument up for you so that then you can make that argument, bring those pieces together at the end to make sure that your point gets across. And that's how you operate with examinations, both direct and cross-examination. Uh, and you then bring everything together in summation in the end, where you say, Here's what the evidence shows you. You heard from my witness when they testify X, Y, and Z, here's what that means. You heard from their witness when a cross-examination you saw X, Y, and Z, or you heard these answers come out, and here's what that means. And that combination should paint that full picture for you of what you want the case to ultimately mean. And if you do that, um you'll be effective, and you can translate that to your daily life, your arguments. Sometimes, you know, I'm talking to people and say, You sound like a lawyer because I'm trained, right, to have these types of conversations. When I'm trying to elicit information, you know, I'm either uh giving you these softball questions or I'm giving you these pointed questions because I know the direction they will take you in. And we have to train our minds to do that as advocates so that we can prepare ourselves and be in a best position to get the answers we want at any time, whether on direct or on cross examination. We appreciate you for listening in to trial and error. Uh some good, some bad, some in between. Uh, but we will see you next episode.