May the Record Reflect
May the Record Reflect
62. Cross-Examination Math: Less is More, More is Less, with Tom Innes
In Episode 62, Philadelphia trial lawyer and NITA Program Director Tom Innes introduces listeners to cross-examination math and how the idea of “less is more” increases the impact of the questions counsel poses to a witness. Control is the name of the game in cross, so Tom also shares how to shepherd witnesses through cross, why to restrict interrogatories in the phrasing of questions, and why less is even more when examining an expert.
Timestamps & More
Topics
3:06 How to think about cross
3:53 Objectives of cross
5:05 Rules of cross-examination math
6:41 Why concision helps your finder of fact
9:22 Controlling an adverse or difficult witness
10:15 Cross demo
14:12 Omitting the interrogatory
17:00 Expert versus fact witness
18:11 When to break the “cross math” rule
23:26 Signoff questions
Quote
“Every word you put into a leading question permits the witness to decide which word they will, or they can, disagree with or work around or give you a hard time about.” Tom Innes
Resources
Tom Innes (bio)
Judge L. Felipe Restrepo (bio)
Mary DeFusco (bio)
Building Trial Skills Philadelphia (program)
On today's episode of May the Record Reflect.
Tom Innes:Well, cross-examination is hard to consider. I mean, it's hard to consider, it's hard to construct, it's hard to control, and it's hard to conduct. I mean, some lawyers consider it the ultimate challenge in any trial. A good, tight cross-examination is worth its weight. On the other hand, inept and poorly planned and poorly conducted cross-examination can not only hurt your case and your storytelling, but it can also be fatal. And it could be with no way to revive your cause of action, your storytelling, or even your version of the facts at issue.
Marsi Mangan:That was Tom Innes. And this is May the Record Reflect. Hello, and welcome to the monthly podcast of the National Institute for Trial Advocacy. I'm your host, Marci Mangan, and in today's episode, I'm excited to introduce you to Tom Innes. Tom heads the prison advocacy practice at the Defender Association of Philadelphia, which is a nonprofit law firm that works to advance the fairness of criminal law and to improve justice for all. Over the 30-plus years he has practiced at the Defender Association, Tom has tried hundreds of bench trials and jury trials to verdict. Throughout his career, he has been a frequent guest lecturer in the areas of trial practice and litigation at a number of different law schools, including Villanova, Temple, Penn, NYU, and UNC Chapel Hill, as well as overseas at University College Cork, National University of Ireland, and Nagoya University in Okinawa, Japan. Tom has taught for NITA for over 25 years and serves as the program director for our trial skills training each spring in Philadelphia. As you're about to hear, he and I had a great time chatting about what he calls cross-examination math. What exactly is cross-examination math? Good question. Here's our interview.
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Marsi Mangan:So Tom Innes, welcome. I'm so glad to have you here on the podcast.
Tom Innes:Thank you so much for having me, Marcy.
Marsi Mangan:Yeah, you actually came to NITA with this idea of yours, cross-examination math. Less is more, more is less. And I thought that sounded intriguing and I wanted to know more. But before we dive into our discussion, let me begin by asking you where we should start in thinking about cross-examination.
Tom Innes:Well, cross-examination is hard to consider. I mean, it's hard to consider, it's hard to construct, it's hard to control, and it's hard to conduct. I mean, some lawyers consider it the ultimate challenge in any trial. A good, tight cross-examination is worth its weight. On the other hand, inept and poorly planned and poorly conducted cross-examination can not only hurt your case and your storytelling, but it can also be fatal and it could be with no way to revive your cause of action, your storytelling, or even your version of the facts at issue.
Marsi Mangan:Okay. Well, you've got our attention. The consequences of cross are very serious. And as you said, potentially even dire. Indeed. Yeah. So what are the objectives in any cross-examination?
Tom Innes:Well, there's probably three or four and maybe even more. I mean, first of all, of course, to help you develop the facts that support your theory of the case. Secondly is to weaken your adversary's theories. Third would be to develop facts, characterizations, and conclusions that you can advance persuasively during your closing argument. And fourth, on the other hand, generally the purpose of cross-examination is not to attack the witness frontally, like head-on, and not to shoehorn the witness into agreeing with your overall theory of the case or your theory of that specific witness.
Marsi Mangan:You know, that's actually a great point. There is always a flip side, isn't there? Where there is a do this, there's also don't do that.
Tom Innes:Right. And I think that's part and parcel with the cross-examination math of less is more and more is less. And you could stay out of all the potholes on cross-examination by following the math analogy.
Marsi Mangan:Right. So we're talking about how less is more and more is less in cross-examination. What are your rules of cross-examination math?
Tom Innes:Well, I mean, whether it's civil or criminal, you have to learn the math of cross-examination. And that math, simply put, is less is more, more is less. And we're speaking of both quality and quantity here. More of anything in terms of cross-examination is less. in terms of ultimate impact and effect. On the other hand, less in our cross-examination computation is more. And let me talk a little more about that. This applies both generally as to the length of a cross-examination as a whole from the first question to the last, but also as to the length of your cross-examination questions. So it's the macro and the micro, more is less and less is more. The macro, the longer the cross-examination, the more issues and areas one delves into on cross. Actually, the less persuasive, the less understandable, and the less memorable the examination can be. As to micro, the more words in each of your individual cross-examination questions, then the longer the question itself, then the less effective that question is, both in terms of leading and controlling the witness, as well as keeping the attention of the finder of fact.
Marsi Mangan:Okay. So how does concision, the less part of the equation, so to speak, help the finder of fact? Or maybe more to the point, how does a lack of concision impact the fact finder?
Tom Innes:Well, good question. Let's break this down to two discrete areas, Marcy. First of all, the view of the cross-examination from 30,000 feet, as I referred to it, the macro view of our overall cross. In preparing, you need to sit down and identify the most damaging and crucial aspects of the witness's testimony and work on questions in those areas. You decide in which areas you can succeed and which areas are so very crucial to your case that answers on cross will be in fact used in your closing argument. Including too many areas dilutes your cross and dilutes the attention of the finder of fact, be it a judge or a jury. It will be hard for them to follow the cross. It might confuse them. It may well make it more difficult. the finder of fact to gauge which areas you're crossing on that are most important. Again, whether it's a judge or a jury, most salient parts of your case and what are the most important salient parts of your case and which they should focus on. Some lawyers use a rule of thumb that you shouldn't cross on more than three areas. Generally, we agree with that, although we don't believe that's a hard and fast rule. Remember, Cross is not repeating direct. Your areas of cross should be limited severely to those that are significant, important to your case, and in which you can make some headway. Okay. And so let's talk about the micro. Even when limiting the numbers of areas on which you will cross, one needs to think about how many questions you need to get to the desired effect. You need to work on slimming down the questions while keeping the cross sharp and crisp, And as short as possible, given the goals that you want out of the cross-examination. And what will make the number of questions shorter? Stop when you get to a desirable or usable answer. Don't keep pushing. Anytime you push too far, you give the witness the opportunity to backtrack, to explain, to undercut the great work you have already done and the great work that the witness may realize you have done against them.
Marsi Mangan:I see, yeah. That little bit of wiggle room equals time and space for the witness to start to parse everything that you've just said, right? Exactly. Yeah. So I think another way that we can put less is more and more is less is actually short and sweet. So how can you use a short and sweet cross to control an adverse witness or an otherwise difficult or stinker of a witness?
Tom Innes:We know that the whole mantra of cross-examination is control. You need to keep control of the witness, both by the areas of questioning and the answer given, hence the use of the leading questions, the ability to use leading questions on cross and thereby controlling the witness. So the micro, the less words in a leading question, the better the result you may get out of the witness and out of the question. So think about it. Every word you put into a leading question permits the witness to decide which word they will or they can disagree with or work around or give you a hard time about. Even ask for, okay, so when you say speeding, what do you mean by speeding? When you say it was raining, what do you mean by raining? And so on and so forth. So how about a quick demo, Marcy?
Marsi Mangan:I love a demo. Tom, let's do it.
Tom Innes:Okay, so cross-examination, I'm asking you, in this automobile accident case at an intersection. Okay. So, Marcy, you're telling this jury that at the time of the accident, even though it was raining and you yourself were driving, you were able to see that the Toyota had the red light when it entered the intersection at Barada Market, right?
Marsi Mangan:Well... I could see the red light and I definitely saw the Toyota. So yes, for those, but I'm sorry, I don't remember the rest of what you asked me. Could you ask me again?
Tom Innes:Right. Sure. You're telling this jury that at the time of the accident, even though it was raining and you yourself were driving, you were able to see that the Toyota had the red light when it entered the intersection at Broad Market. Is that helpful?
Marsi Mangan:It's a lot of details, all in one question.
Tom Innes:It's a lot of details. And so that's exactly the point. So let's try it again, because the question like that, it's easy to interrupt your cross. And the whole idea of cross-examination, as we all know, is to get your rhythm, get your cadence down. And what you really want is a series of yes answers to short questions, short, concise questions. So let's try that again, Marcy. Okay. So you're the witness. At the time and date of the accident, you were at the intersection of Broadham Market, right? Yes. You were driving your vehicle? I was. Your vehicle was a minivan?
Marsi Mangan:This is an embarrassing admission, but yes, I was driving a minivan.
Tom Innes:And the minivan, in fact, was green. Isn't that right? Yes. And it was raining? It was raining. There's a traffic light there, right? Yes, there was. And the traffic light was working? Yes. The traffic light had red, green, and yellow lights on it. It did,
Marsi Mangan:yes.
Tom Innes:And you saw the Toyota enter the intersection? I did. At the time the Toyota entered the intersection, you could see the traffic light for the northbound traffic, isn't that right?
Marsi Mangan:Yes, that's right.
Tom Innes:And you're certain of the color of the light for the northbound traffic? Yes. And the northbound light was red, right? That's correct. Yes. Right. So note the much better result by looking for a series of yes answers. And the witness has little to choose from to quibble with it in each question. Note also that you can cut down the number of words and the length of the question by omitting the interrogatory generally at the end of the sentence, as I did many of the times when I was cross-examining Marcy.
Marsi Mangan:Yeah, I felt the difference. It felt very structured when you paced yourself and just doled out one little detail at a time. You'll have to tell me if I'm barking up the wrong tree here, but it occurred to me that when you were putting more than one detail into a question, or in this particular case, a bunch of details into one question, what in effect happens is you're asking me a compound question. Do you think that's true?
Tom Innes:Without a doubt, you're asking a compound question and you're literally throwing, you know, you're throwing spaghetti at a wall and the witness can pick any strand of that spaghetti to respond to you about. Right. Right. And so it's really problematic. And as you can see, if I put more than one fact in the question as I did in the second, it's because the first fact I'd already had you agree to. And then the second, then I can use that fact in building the next question.
Marsi Mangan:Right. So you just mentioned interrogatory. Can we circle back to that? Because I think that is potentially interesting to our listeners. What do you mean about the interrogatory?
Tom Innes:Sure. This is something that Nita is really very strident about. Generally, when we think of cross as a series of controlling reading questions ending with an interrogatory, Isn't that true? The light was green. Isn't that correct? The light was green. Isn't that right? One way to cut down on the number of words in your questions and to help with your tempo and not only with your tempo, but with your cadence and control of your questions is to omit the interrogatory and simply make your question into a statement. and raise your voice at the end. We do this every day in our private lives. And people understand this is an interrogatory or a question. Try it. Some of us call it a questionment, a statement turned into a question. In fact, it not only helps with the cross math, less is more and more is less. But it also helps deal with the dreaded problem of double negatives and unclear answers. In other words, if I ask the question, you didn't go to the intersection, did you? And you answered yes, does that mean you did go to the intersection? You didn't go to the intersection? What does it mean? So when asking, when you can leave out the interrogatory, you have a better sense of what the answer that the witness is giving is about. And then you can use that to move on to the next question.
Marsi Mangan:Yeah, when you asked that question, you don't know if you should answer the question at the beginning, which is you didn't, or the question at the end, which is you did.
Tom Innes:Exactly the point. And it's exactly the way of getting around to that is just asking the question and raising your voice at the end. As I say in my classes, it's like everybody just tries to be a valley girl and raise your voice at the end, right? You went to the store, right? I mean, just do that. People understand that. Now, every once in a while, people say to me, well, you know, suppose my opponent of Jackson says he can only ask questions and that's not a question. And so if the judge says, yes, put it in form of a question. Okay. It's not, you know, it's not built in concrete. So you ask the next couple of questions with using the interrogatory and then you go back again. And frankly, It is so common and human nature to ask questions by raising your voice at the end that pretty soon everybody forgets about it and you've gone back to the question.
Marsi Mangan:Yeah, it is. Good point. Questionment, that's such a funny... portmanteau.
Tom Innes:Yes, it is.
Marsi Mangan:Yeah. So my next question then is what difference in your strategy of cross-examination math is there when you are crossing an expert witness versus a fact witness? Is there a difference?
Tom Innes:Yeah. So actually when conducting a cross-examination of a witness trial, it's actually even more important that you use the math of less. The math of less is more and more is less. Often, experts are professional witnesses with much experience in giving testimony, and they may well be able to use jargon and their own depth of knowledge to sidetrack or even muddy your cross-examination. They'll be looking for how to undercut your theory and your cross and your facts. And the fact that the expert is often better versed in the areas in which you will be cross-examining, put those two together between the jargon muddying your cross and maybe having more depth of knowledge about a specific subject, it's clear that the less areas you cross on, A, B, the less words in a question they can quibble and gnaw on, B, the better.
Marsi Mangan:Got it. Yeah, that's a really great point. I think that we have all heard that you have to know the rules before you can break them. So I want to know if there are ever times where you breaking the short and sweet rule about asking leading questions during cross is okay.
Tom Innes:Yeah, I mean, I'm glad you asked that question. Remember that the cross math rule of more is less and less is more is a general rule. Okay. In most cases, you're best served by sticking to general rules. However, as in all rules, there can be exceptions. As you develop your skills and your experience, you may well find areas, just as with asking a witness an open-ended question, when you can and will need to give the witness some latitude in answering. But as with all general rules, stick to them unless and until you have other tools to work with. By other tools, I mean like prior statements and depositions and contradicting witnesses of your own to call and so on.
Marsi Mangan:All right. Well, gosh, Tom, this information has been really fantastic and I can't help but notice that it's in keeping with your short and sweet examination theme. We just got right to the point with this episode. Yeah.
Tom Innes:Right to the point. That's right.
Marsi Mangan:So when you came to us with this topic and I thought, yes, excellent idea. That's great. The lady marketer in me also thought, you know, Tom, you've got a trial skills program coming up in Philadelphia in March. And maybe I should give you the floor for just a minute or two to talk about that in case listeners are like, you know, I like this Tom Innes guy. I think maybe I'd like to learn from him face to face. So you are the program director and you've got some special features that listeners in the program might not find at other NITA programs. Can you tell us a little bit about your Philly program?
Tom Innes:Sure. Thanks, Marcy. You know, I'm pretty proud of our program, the Philly Trial Program. Our program team, myself as program director and El-Philippe Restrepo and Mary DeFusco as team leaders, have been working together a number of years. You may also, if people are interested, look them up. You know, Google El Felipe Restrepo and Mary DeFusco and get an idea of who they are.
Marsi Mangan:Oh, well, who is he? He's a judge, yes?
Tom Innes:He's a third circuit judge. That's right. Mary DeFusco is a lifetime, lifelong trainer for attorneys in her professional life and also with NITA. So let's roll back a little and picture this starting at the end of our Building Trials and Skills program and working backwards. The final day of our program, You, along with a partner, will litigate a full mock jury trial in an actual courtroom with jurors we bring in from the community sitting in an actual jury box and watching and listening to both sides as they litigate the case. After the trial, you're able to sit and listen while the jurors deliberate. And you'll hear them review and parse the evidence and, God forbid, your presentation as well. Teaching tools that are virtually impossible to replicate in real life. If lawyers can actually get on a jury... And that's almost impossible to find lawyers on juries. And having a judge allow you to talk to the jurors afterwards, let alone during deliberations. So you'll also be able to speak to them personally with the jurors after the verdict and learn much more about them. And people love that aspect of our program.
Marsi Mangan:Yeah, that's cool. And it all takes place in an actual real
Tom Innes:courtroom. Yes, ma'am. We also offer two hours of ethics credits in which the faculty and participants play roles and interact. Now, I know a lot of people have been in CLEs with ethics standalone CLEs programs where it's just some guy or some woman talking at you for an hour about ethics. Our program is everybody, the faculty and participants, play roles and interact. It's not a talking head situation at all. People find it to be a lot of fun. We take pride in our faculty. We have a huge stable of real trial lawyers who come back year after year and assist in the teaching. They volunteer to teach, and they love doing it. Over a five-day period, you'll hear from a myriad of different trial lawyers and trial advocacy teachers. And we choose these teachers and lawyers from all areas of practice, large and small law firms, public interest law firms. federal and state litigators, prosecutors, and criminal defense attorneys. And what we really look for is we emphasize attorneys who have legs in both the criminal and civil worlds, because people need to understand both of those things. So a full mock jury trial in an actual courtroom, juror feedback after the trials, lectures by experienced teachers, and two hours of ethics credit. We give it all in Philly at our Building Trial Skills Program.
Marsi Mangan:Plus it's in March, so most of the winter weather is behind you and you can probably fly in and out without too much trouble.
Tom Innes:Yes, and Philadelphia is a wonderful city to visit.
Marsi Mangan:Yeah. Well, I think that sounds amazing. And the link is in the show notes if anyone is interested in studying and learning trial skills with you, Tom. Before we wrap up, I wonder if you've got a little bit of time left over for a couple of softballs. What do you say?
Tom Innes:Sure, go
Marsi Mangan:ahead. Why did you become a lawyer?
Tom Innes:Well, I've been a criminal trial attorney with the Public Defender's Office in Philly for my entire career. And the reason for that is because I love trying cases. I love the fun of being on your feet and dealing with the expected or unexpected and just having to brainstorm what's coming next. Thinking on my feet and providing the kind of trial advocacy our clients in the Defender's Office could not pay to obtain.
Marsi Mangan:Excellent. Well, it sounds like you found the right niche for yourself. Have you got any TV obsessions lately that you can recommend to us?
Tom Innes:Well, yeah, I do. I suggest that people, if they haven't watched Succession, watch Succession and certainly The Sopranos. Most recently, I just finished The Day of the Jackal and The Agency and this great show on Hulu called Paris Has Fallen. And for people who are thinking about my program, One of the things that we really pull out during the ethics are some things out of movies, and specifically movies having to do with the law. So consider, and there's a lot of younger people who haven't seen these, and I would suggest the musical Chicago. It's about a criminal trial. Anatomy of a Murder, My Cousin Vinny, and Inherit the Wind. So they're all great, great movies, and they bring a lot to the table in terms of thinking of being a lawyer.
Marsi Mangan:And so you incorporate some of those scenes into your teaching at the program?
Tom Innes:Yes. Oh, yeah. We have actually show clips during the ethics portion and talk about what happened during anatomy of a murder, and especially my cousin, Vinny.
Marsi Mangan:Nice. That's fun. So final question, how would you spend a million bucks and all thrills, no bills, Tom?
Tom Innes:That's very easy. There's a little place in this, there would be a little place in the city of Tangier, Morocco that would have my wife and my name on it. And we'd be living there full time.
Marsi Mangan:Oh man, that sounds amazing. Um, have you, it sounds like you've been to Morocco,
Tom Innes:been to Iraq, Morocco a couple of times. Uh, and I, uh, I love visiting Africa. And the most interesting thing about Morocco and specifically Tangiers is that it really does, as I said, about having a leg in criminal and having a leg in civil for what I consider to be the best academics and the best professionals. The same thing with Tangier. It has one leg in Africa and one leg in the culture of Europe. And it's just terrific.
Marsi Mangan:Well, it's on my wish list. Well, thank you so much for joining us. It was really fun to talk to you. This was an excellent conversation. And I love that we just put the short and sweet to the test and got right through
Tom Innes:it. Thank you so much. I really appreciate having the opportunity to talk about the cross-examination math and also to talk about our program, which begins on March 18th and runs through this 22nd in the city of brotherly and sisterly love, Marcy.
Marsi Mangan:Thanks so much, Tom. I'll put the link in the show notes and please check it out.
Tom Innes:Thank you. Thank you.
Marsi Mangan:As always, thank you so much for listening to this episode. If you like what you heard from Tom Innes, please leave us some stars. Five is our favorite number. On Apple, Spotify, or wherever you listen to podcasts. Getting to talk to some of the best and brightest litigators in the country so we can share their insights with you is great fun. And getting reviews and stars lets us know that you think we are on the right track. Now, I just mentioned Spotify, and maybe you're listening to this episode on the app. Nita's podcast producer, Charlie Woodcock, and I were interested in trying out Spotify's new polling feature. In the app, you can scroll down through the show notes until you reach our quick poll about cross-examination. It's just for fun, so please join us in giving it a try. We are keen to see the results and promise to post a screenshot on our social media when we do. We will be back next month with a chat about how to communicate well in the courtroom and not sound like a lawyer on TV. Until then, we wish you the very best of luck in your depositions, motions, and trials. Happy lawyering. May the Record Reflect is a NITA Studio 71 production. NITA. We are advocacy enhanced, mentorship reimagined. Welcome to the community.