My blog posting is geared toward defense attorneys but it’s also applies to prosecution too so… Awareness of your demeanor is the core fundamental of cross examination. This is what I believe okay. The first lesson of our art and it is an art is to control our manner toward the witness under the most trying circumstances. Now do you think I wrote that statement? That is a statement as you can tell from the language, it was written in 1903, the prominent lawyer of the time. The first lesson of our art is to control our manner towards the witness and I have to think about that it sounds simple. This is the most difficult thing in the court room the manner of your cross. Is your manner Strategic? Planned to meet an objective? Does it demonstrate emotional self-control and self-awareness? Now self-awareness word is the key to being a trail lawyer this is what I think. Is your manner an unconscious reaction are you not aware of your surroundings? You expose the lack of self-control or you exposing a defensive position. Exposing lack of self-awareness; Folks the juries, they don’t get to talk, right?
What do they do? They’re just observing probably the first time in their life, they’ve never said a word, they’ve had to observe what’s going on and they’re observing you, they’re observing the way you moving your chair react with you client and react to questions. Is your manner of your cross—I just put these up here only say when you are in trial you got to be able to say what’s going on with me, with me? Am I aggressive or am I assertive? Hopefully you’re assertive, am I sarcastic or am I neutral? See when those adrenaline kicks in, a little sarcasm kicks in okay and that’s not good. Are you surly or are you pleasant? Not I mean roll over pleasant but I mean under control.
Hostile versus amiable, imperialistic; talking down to people vs. humble. Roaring in the court room loud, are you calm and collected I know you’re saying who am I what do I do in the courtroom, that’s what you’ve got to be able to say and here’s something I want you to understand. If you’re mad, you are what folks? You are losing. Think about that “I am going to show I am mad and that means I really care about the case” When’s the last time you were mad and you were winning the case? Did you realize this? The jury realizes this, your mad and you are over there your blood pressure’s going up, you’re mad.
You’re losing if you’re mad, Okay? The Jury; Is your manner impressing or alienating? I had an attorney tell me “I totally destroyed the witness” came out the hallway, “I tore him up, I destroyed him” We’ve all heard that by all the other lawyers, we might have said it ourselves. The Hysterical lawyer, these are the things that exist in the lawyer’s mind Okay? I didn’t write that. It was written in 1903.
What you think maybe totally different and often is what the Jury thinks by you destroying a witness. I could go into war stores but I’m not going to I have to bite my tongue not going to war stores. It is in the mind of the Jury that you’re addressing, even though the question is to the witness. I used to slam my chair with so slightly to the Jury to remind me of this. One Judge told me, I won’t say which county.
He said “look at the witness” he knew it what I was doing it, I was trying to remind myself that it’s the Jury that I’m talking to. I might have slammed my chair too much but anyway slam it ever so slightly or put a note on a desk, “it’s the Jury, it’s the Jury” Okay, what’s the jury? you’ve heard this case 10,15, 20 times, 1st time for the Jury. I didn’t say this. It was said in 1903 it’s the book the second fundamental is to control your manner towards the Judge. Maybe I should be towards the judge, as you can see I wrote that okay. Be aware of the Judge. If I go across the state, I really find a judge that I dislike and there are some judge who are experts at reprimanding you and they know how to do it. There are some judge—but that’s not the question. The question is you always respect within the courtroom you don’t let the opportunity arise. Now how would it arise? Here’s the number one way it arises.
Allow the witness to answer the question, the number one way a judge can hurt your credibility whether your prosecutor or defense attorney. Counsel—first off if you hear that word “Counsel” you know you’re in trouble okay. Nothing good comes out after counsel when a judge talks. Counsel; you need to allow the witness to finish the answer. This sounds simplistic, this destroys your credibility in front of the Jury, makes you feel like the Jury think you don’t know what you’re doing. Let the witness discord. Counsel; The court reported cannot take down two of you talking, you say well that never happened, this happens every trail you’ve got to be aware of this and not let it happen it makes you look like an amateur.
Okay. Stand for all objections. I was in the court room watching a good lawyer, he sat at the table and made an objection. I’m not talking about a young lawyer, this is what we heard. Counsel, that word again, you need to stand when addressing the court and now the Jury says “this is an amateur we’re dealing with” you have to be aware of these things. Don’t ask the judge to instruct the witness to answer the question. These are the responses you will get. “I believe he did answer, move along” don’t be an amateur, if you’ve asked the judge to instruct the witness to answer the question your question is probably too long, too involved, too complicated, break it down and leave out the sarcasm.
The third fundamental is to control your manner toward the prosecutor. I know we’ve got a third prosecutor and this is meant for defense attorneys and as a prosecutor you got to control your manner toward the defendant I mean the defense attorney maybe the defendant Hah! One time a prosecutor—we had a transcript issue going. I said “Judge I’ve never seen this transcript” and so the prosecutor comes over and slams the transcript on my desk, I got finished with mine, I went and slammed it back on his desk. Now how foolish was that, you think about these things for the rest of your career. You got to control your manner towards the prosecutor and why do I say this? I don’t say that the prosecutors run over or defense attorneys run over the prosecution. Awareness, your fight is not with the prosecutor if you’re a prosecutor your fight is not with the defense attorney. Be pleasant, even when you feel a personal attack. Who we’re dealing with? We’re dealing with the Jury. I don’t mean let people run over you but I’m just saying don’t start a war you don’t need to be involved with, okay.