With in-person trials beginning to ramp up again after the shutdowns caused by COVID-19, dusting off trial skills becomes important. In this episode of The Litigation Psychology Podcast, Dr. Bill Kanasky speaks to trial attorneys Paul Motz of Segal McCambridge and Georgianne Walker of May Oberfell Lorber about the art and science of cross examination. Paul and Georgianne discuss their individual philosophies around cross examination, how they make decisions about the approach they will take for cross based on the jury, and how they handle cross examination of an adverse co-defendant. Paul and Georgianne also share specific case examples and stories, talk about the role that gender might play in their cross examination strategy, how they manage cross examination of expert witnesses, and how they help their own witnesses when they are being attacked by opposing counsel. Lastly, the group discusses how they have been, and expect to, manage the physical distance COVID protocols in place when doing cross examination.
Full Episode Transcript
[00:04] Bill Welcome to another edition Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. I am here with two, uh, two very good friends and clients. And I’m gonna speak for all of us right now. I am so glad that the end of a very, very painful, painful college basketball season is now over. I can go on with my life. I, um, that was—it was quite painful. Uh, Georgianne Walker, South Bend, Indiana, uh, Indiana alum, Indiana fan. How have you survived, uh, March? Because it had to be painful for you.
[00:47] Georgianne Well, I went to the first round of the tournament to see four games, and I went to the final four on Saturday. So, I didn’t have a dog in the fight, and I didn’t have to be upset. I just had fun watching basketball.
[01:00] Bill Of all the years for Indiana to be in this tournament, this was the one year every game was played in the state of Indiana. It’s like having a music festival and not having John Cougar Mellencamp show up or even invited. Well, Paul Motz, Chicago, Illinois. Paul, how, uh, how are—how are things going with you? I saw DePaul just hired a new basketball coach, so now you’re in for another losing, uh, 10 years. Congratulations.
[01:28] Paul Hey, you know what? Uh, it’s—it’s great. As a DePaul grad, I get to root for the other Catholic school in town, and, uh, go, uh, Loyola. And, uh, my—my—my other favorite school in the state, uh, also, uh, didn’t do so well, Illinois.
[01:47] Bill I’m gonna leave that one alone. I know that’s sensitive—
[01:50] Paul It is a sensitive subject. Um, but, uh, hey, how are you holding up given that, uh, you just lost your best friend, your mentor, uh, your shaman of your basketball program, uh, Coach Roy?
[02:01] Bill Um, listen, uh, it was time. It was time. And, uh, he—I—I think he hired probably the best guy available, Hubert Davis. I just listened to the press conference. So, um, but until things pick up, I think—I think we’re a football school. Oops, I said that out loud.
[02:21] Georgianne No, IU is a football school now.
[02:23] Bill Well, how times have changed. Thank you for being on the podcast.
You know, one thing we haven’t talked about in a year, doing this for a year by the way—over a year anniversary—trial skills. Because no one’s been to trial except for Paul here. Um, and so I do think, like anything else, if you don’t use it, you lose it. And, um, courtrooms are starting to opening. I got 14 phone calls today. People are making me nuts. Um, and I’m getting a lot of calls, a lot of, you know, voir dire help, jury selection help, things like that, because everybody’s forgotten how to do it. But there are other things going on at trial that I think are really important regarding witnesses, particularly the art and science of cross-examination. Now, um, you two are both young yet both really experienced and, uh, very, very good, um, attorneys. What’s your general, uh—Paul, what—what’s your general kind of outlook when you’re—you’re going into, um, a situation where you’re going to cross-examine witnesses and you want to do the job? At the same time, you don’t want to overdo the job at the risk that, you know, maybe you tick off a couple jurors.
[03:38] Paul Well yeah, I mean that’s a—it’s a great question, and I’m going to give you a great lawyer answer: it depends. It really depends on the situation. You get those things in life that are game time, uh, decisions. I—I will go in to a cross-examination with some points that may never see the—the light of day or some chapters of cross-examination that I may not use. Uh, especially depending, you know, if it’s—if it’s a single day witness and they’re—they just knocked it out of the ballpark. Say it’s the plaintiff and it was very emotional, I might not go in to beat them up.
Now, if the—the plaintiff did an okay job—my last—my last jury trial before the pandemic, I had—had two plaintiffs. And the—the first plaintiff testified, was—was planning to go with kid gloves, be very nice. And this person tried to jump down my throat right from the off. And after three or four, say, “Hey, hey, hey, I’m just—I’m just here to get—to get some minor concessions,” uh, he opened the door enough so that I could be, uh, a little more on the attack. Uh, you know, as a defense lawyer, I always believe that, you know, defense lawyers don’t always get the same leeway with being aggressive as plaintiff’s lawyers do, um, especially with—with plaintiffs or with—with experts. But, uh, you know, that—that’s my long-winded way of saying, um, you know, it depends on—on the playing field when, um, when I step up to do the cross.
[05:25] Bill Nice. “You can’t handle the truth.” Is that what that witness did to you?
[05:29] Paul Uh, you know, I—I—it’s something—something to that effect.
[05:33] Bill Exactly. Georgianne, particularly fact witnesses, how do you like to handle cross-examination? Because I know—I know you do a lot of medical malpractice work, and particularly if you have a plaintiff that’s no longer on the planet and you’re dealing with, you know, family members and—and things like that. How do you—how do you make this balancing act work by being effective but not come across as a—as a bully?
[05:58] Georgianne Well first of all, if I don’t need to cross-examine the witness, I don’t at all. I mean unless there’s a fact that I need. For instance, let’s say it is a medical malpractice case and husband died, wife was present when supposedly something was done or said and I have to cross-examine them. Um, then I do. But my first step is: do I really need to cross-examine this witness? And in fact, we’re in a situation if the answer is no, I just say, “I don’t have any questions.”
Um, otherwise I get in and I get out. I have a very strict outline that I follow. I try to get the most important fact that I can out of them initially, so that that’s the first thing or second thing the jury hears. I might bury something in the middle that might not be completely favorable to me, but perhaps I don’t have another witness to get it in the evidence in, so I have to go there. And then I usually just save my second strongest point for the end, wake the jury back up. But in and out. I mean a fact witness, especially in a med mal trial, if I’m cross-examining them for more than 10 minutes, it’s probably too long.
[07:05] Bill Very interesting point. Probably reducing the risk to yourself as well. Okay, I’m going off script because I just thought of a brilliant question. Paul, you have to cross-examine an adverse co-defendant? Hmm. Ever had to do that before? That’s the kind of an interesting… you know.
[07:28] Paul You definitely…that’s a totally different, uh, kettle of fish for sure. But I—I think, as Georgianne just said, that “get in, get out” uh, is—is the way to go. Because, you know, if it’s a fact witness, plaintiff, or adverse co-defendant, you know, if you trip over a line, it’s going to blow up on you and redirect. Um, so it’s—it’s—it’s really coming through the whole idea of, you know, stick to your points that you have to make out. You know, Georgianne just—just talked about it, making a decision of whether you need to, uh, cross-examine that person. If it’s an adverse co-defendant, you got to figure the plaintiff has got their licks in before you’ve—you’ve ever stood up. So it’s probably a very narrow window of material that you’re trying to, uh, to get out of them.
You know, getting back to the—the witness I was telling you about, the plaintiff. I put my licks in—it was a husband and wife, it was a medical malpractice case, uh, but it was—they were joint executors of the estate. And I put my licks in on the husband. They—the plaintiffs thought, “Oh, this was going to be the same exact, uh, strategy for the wife.” That was their last witness. Turns out we had strategized this. My partner, Heather—who you’ve had on the podcast—handled the cross-examination. And she, uh, made the tactical decision after a very meek direct examination—uh, because they—they had watched me put the—the leather to the—the husband—um, they, um… Heather decided, “Nope, we don’t need to do any cross-examination whatsoever. We already got the facts out of the case.” So what Georgianne said that’s—that is such a—such an important point. You don’t want to ask that one question too many because that’s—that’s when everything comes tumbling down and, you know, you’re leading with the jaw and you get that haymaker landed on you. It’s never—never something that you want to happen to—in front of a jury or in front of a judge.
[09:38] Bill Very interesting.
[09:41] Georgianne I would add, when it comes to if you had to cross-examine a co-defendant, i mean, first of all, if you’re in that situation, I feel like something didn’t go right.
[09:51] Bill You’re right.
[09:52] Georgianne I would hope that I would have talked to my co-defense counsel and said, “Okay, you’re going to get it all out, right? And then I don’t have to ask questions.” Um, but if for some reason not, the only other situation I can think of where I’ve ever had to do it is, um, when the co-defendant has also been, um, disclosed as an expert and I just want the jury to hear from another doctor or same type of healthcare provider, um, that my client didn’t breach.
[10:22] Bill Interesting. This is great stuff. Um, I’m going to go off script again. See, I like going on script.
[10:26] Georgianne I don’t even know why you give us the scripts.
[10:29] Bill I’m not giving you a script. All right, so what I’d like to talk about is do either of you have… because this is going off of what Paul just said, this is Paul’s fault. He makes a point that I’m like, “Hey, that’s a great question.” It’s like a witness that talks too much—it’s a guest that talks too much giving me follow-up questions. This is easy.
Do you, Georgianne, do you—and then I’ll go to Paul for this—have there been times where you specifically wanted a, like, a male attorney cross-examining a female or vice versa? Have you ever made those types of decisions? Like, “Hey, like—like for example, I may not—maybe I’m not the right person to do this particular cross. I want my associate to do it or my—my other—my co-partner.” Have you been in that situation and I’ve tried to match it up to, again, improve the appearance of this? You’re smirking, Georgianne, so I’m dying to hear the—the…
[11:24] Georgianne I have absolutely. Um, in a situation where, you know, someone died and the surviving spouse was a female. The last thing I wanted the jury to think I was doing… and she had to be cross-examined because she had facts that—I mean, she was there. We had to cross-examine her. Um, I had my male co-defense attorney cross her because I just did not want the jury to think I was attacking her in any way. Not that I would have gotten up there, but yeah. I mean, it’s a decision you have to make sometimes.
[11:57] Bill It is. It—it is. That’s a… Paul, you’re—because I—I assume you—you’ve done a lot of cross and I’m just assuming that, um, you may want to sometimes match up different people just because of the appearance of the jury. Fair enough?
[12:11] Paul Absolutely. You know, I—I know, uh, I can be a bit of a bull in a china shop.
[12:16] Bill Oh, really?
[12:17] Paul Yeah, yeah, yeah. I know, you had no idea.
[12:20] Bill No clue, no clue.
[12:22] Paul Um, and so it’s definitely something where, you know, it—if there is a key witness that, you know, obviously you talk about it with the client to—you know, if the client hired you to try the case and you’re saying, “Well, I—I can’t do the plaintiff expert,” or “I can’t do this, uh, party,” there’s got to be a good reason why. So it’s got to be well thought out. But yeah, just like, uh, Georgianne said, I’ve engaged in this behavior and it’s—it is a strategy in terms of, you know, how to get the points off, uh, so you don’t either—uh, you don’t make it worse for you or, you know, if you’re about to give closing argument, you don’t want to lose credibility with the jury. So there’s—there’s definitely some strategy involved.
[13:10] Bill So Georgianne, when you’re dealing with things, um, relating to plaintiff culpability—medical non-compliance, right? Didn’t take their medications right, didn’t read the warning label, whatever. Do you still kind of want to get in and get out, kind of stick and move, or—or how do you? Because those—because those are great facts for the defense. Again, how do you balance that? Because you don’t want to go too fast if you have pretty much proven non-medical—non-compliance. I mean that’s golden for the jury, right?
[13:40] Georgianne Yeah. Um, I—I would still… I mean, on cross I always want to get in and out. But in that situation, I would make my point. I would probably, depending upon the points that I was making, allow there to be a pause so that the jury can actually think about what was just said. I mean the goal is I need to get into evidence so I can argue and close. That’s the goal. But if you can have that pregnant pause while I go back to my notes, even though maybe I know what my next question is…
[14:12] Bill Oh, beautiful! I like that.
[14:14] Paul And that’s what I’ve always been doing at trial—it’s a pregnant pause.
[14:21] Bill You’re the opposite.
[14:23] Paul I don’t know what I’m doing and I need to find it in my notes.
[14:27] Georgianne I—I think the other strategy that I would take would be if there was a document that showed it. For instance, perhaps there’s a note that specifically says, “You know, such and such patient was non-compliant and hasn’t followed up with X.” I would show—I would have that exhibit up or if, you know, in the old school days I guess the jurors had their paper exhibit books, which they’re not going to have anymore, I don’t really think, because of COVID. But, you know, I put it up on the screen, highlight it, and allow them to actually be able to see it. So they don’t fall asleep just listening to the testimony. Because then in closing when I say, “Remember when I got her to say this?” they’re like, “No, you lost me there.” But they’ll remember the document was up.
[15:12] Bill Excellent point. Uh, Paul, let’s shift to, um, experts. Um, now the gloves are off, right? I mean, when—when you’re getting the, um, paid—well-paid expert, and probably both sides are doing this too, right? I mean, um, can you kind of compare and contrast your style? Um, because that’s a—that is a different ballgame, correct?
[15:35] Paul Yeah, it—it definitely can be. Um, you know, it’s—it depends on—on the expert. The trial that I just—just completed in, out West, uh, the three liability experts and each one of them presented a different style. One of them was the arrogant retained expert. One of them was, uh, you know, just there to fight the whole time. And then there’s the one that, you know, really just was matter-of-fact: “Yes, I didn’t do this,” or “No, that’s not, you know, what—what the evidence shows.”
And there’s—there’s nothing better when, you know, your cross of an expert and you can just keep swinging away, um, you know, as long as you’re making points. You know, it’s not like, you know, talking about the minutia, but as long as you’re making the points, uh, for the expert that just advance your case, there’s not much more fun that—that I can really have in a courtroom outside of say, closing argument. Um, that’s just the way I approach it. You know, it’s—it’s kind of sad once the plaintiff’s case is over and I’m like, “What? I don’t get any more cross-examination? Oh crap. Uh, co-council, you can do the rest of the trial. Wake me for closing.”
[16:49] Bill Nice. Georgianne, what’s your philosophy when cross-examining, um, plaintiff’s expert?
[17:00] Georgianne Again, it depends on the personality. Hopefully you have a good deposition to go by. You know, these opposing experts aren’t just going to walk into trial and roll over and say, “You’re right, you know, I was wrong.” So again, have your points. I think that it’s very important to have a well-established outline even if you don’t ask every question on it. And I’m not advocating that you sit there and read every question, but you need to know what you’re doing when you get in there.
And if you’re going to impeach them, whether it be with an exhibit or their deposition, you better have that ready. If it’s the dep, page and line number, if it’s the exhibit, have the exhibit ready. If you don’t use it, you don’t do it. I mean then you just, you know, wish you had it there. Um, I’ve had an expert once, he’s on direct and he’s walking around the courtroom and he’s just glaring at me. And it wasn’t—it hadn’t been my file; someone pulled me in to try it, so I didn’t depose him so we had never met. And he’s just walking around glaring at me and I’m thinking… and you could just tell he was looking at me like, “Oh, this girl, she doesn’t even know what she’s doing.” That was one of the most fun cross-exams because I was sitting there thinking…
[18:06] Bill It’s on. It’s on. Yeah, see, little do you know, you do not mess with Georgianne. And he didn’t—obviously this person did not know that.
[18:20] Paul Yeah, yeah. Georgianne just made a great point: hopefully you have a great deposition. Uh, that—that’s a key thing throughout all of cross-examination. You know, some of the best plaintiffs attorneys, they win their case in the deposition. And there’s—there’s one very well-known, uh, plaintiff’s attorney who will just read the questions straight out of the deposition. He’s got them all cued up on Trial Director, and every single line that helps his case, he just reads it. And if you—if the expert or the witness changes anything, bam, it’s video impeachment immediately.
Uh, unfortunately the last couple trials I’ve had, I’ve had no depositions or I’ve had horrible depositions. So it’s—it’s really trial—it’s cross-examination, aggressive cross-examination by the seat of your pants and hoping that you’re not leading with your, uh, your chin out. And thankfully I didn’t get my chin, uh, you know, busted by anybody on cross, but, uh, depositions are so key when it comes to cross. Should really be setting up your—your trial cross-examination there, and unfortunately not enough lawyers do that. It’s more, “Well, just tell me the facts,” instead of what the plaintiffs are doing—advancing the themes, getting the key admissions, and—and locking in every favorable thing they possibly can.
[19:43] Georgianne And what’s the point really of cross-examining someone if it’s a moot point or it’s something that doesn’t really matter in the case? You’re just gonna lose the jury, so you might as well just make the key points that support your theory of the case and then argue it in closing. The only other thing I’ll say about crossing an expert is I catch myself—I have to slow down. Because I’ll just rapid fire, and then before you know it, the judge is like, “Whoa, you guys like…”
[20:10] Bill She’s like Floyd Mayweather. Floyd Mayweather.
[20:16] Paul I mean, it’s not the court reporter first, uh, throwing something at you. Usually that’s who I—I make mad by going too fast.
That’s a great point. I—I—I—I’ve started on some of these cases, I will do my own exhibits on my iPad, like I’m in charge—like I’ll take it over from the hot seat operator. I’ll be running with my iPad as I’m, uh, doing the exam. And that actually forces me to slow down, be more deliberate in the landing of the—the key points instead of the body—working the body bag, you’re just like one after another, uh, making it more deliberate, which would sometimes help me out. But that’s, you know, the—the pacing and the performance aspect—that’s a huge thing about cross.
[21:00] Bill So let’s, um, let’s turn the tables on you guys. When your clients, say, being called as an adverse witness and they’re up there getting clobbered, are you just kind of like saying prayers to God at that point? Or do you—do either of you kind of object just to object, to just to try to break up the rhythm? Or are you just trying to survive to get to the other side to rehab your witness? How do you, Georgianne, how do you handle that? Because that’s got to be a difficult position for you to be in.
[21:27] Georgianne I’m not going to object unless I have to to preserve the record. Because in my mind, that only puts a larger spotlight on this unfavorable thing I pray to God the jury’s not listening to, but that I knew I wasn’t going to be able to get away from anyway. And because of your help when we prep our clients, I mean, they’re—they’re ready for it. And I always tell my clients, “I will not miss it on redirect. Do not argue with opposing counsel. Keep your answer short. I will get up on redirect and we will fix it.”
[22:01] Bill Paul?
[22:04] Paul That’s a great point. Yes, there are always prayers. You know, working with you, Bill, it’s one of those things where I’ve—I’ve learned enough that you can spend all the time in the world with, uh, a—you know, the lowly, you know, truck driver, an experienced neurosurgeon, the head of a hospital, or an expert, and sooner or later they have to perform. So I will diverge from Georgianne there and, yeah, I will occasionally lodge a legitimate objection that breaks up the rhythm just because, you know, obviously I look at, you know… I tell my witnesses I’m their bodyguard when I—when I’m in trial. Because it’s not one of those things where I’m prepping them for cross-examination in the steps of the courthouse—that’s the first time I’ve seen that. On these bigger cases, we’ve met multiple times.
I’ve tried and—if—and if I haven’t done it, I’ve—I’ve not done my job correctly—I’ve tried to put them through a worse cross-examination than they’re about to go through. Uh, that’s—you know, they don’t necessarily like it being screamed at sometimes. But that’s where you really get it. You go through the mock cross-examination to make it harder than what they’re going to go through on the stand. And obviously using someone like your skills from the—the neuropsychologist point of view adds to their ability and their confidence to know, as Georgianne just said, when it’s my turn to stand up, I’m here to fix things. And if I don’t, we’ve made the decision it’s not—it’s not a problem. So it’s especially for the—the witnesses that are problematic. I definitely abide by the same axiom on cross-examination: get up, fix what I need to, and then sit down and get him off the stand.
[24:03] Bill Outstanding. All right, final question, I promise. As courtrooms start to reopen, and some already have, what I’ve been hearing from everybody is that they’re not letting the attorney move around the courtroom. You have to stand at a podium, and they’re maintaining all this distant stuff—distance, distance, distance. How does that hurt you as a cross-examiner? Because I can—I’ve seen both of you perform, and you don’t just sit there behind a podium. But now you’re going to have to. How are you going to adjust that? Because I do think for a cross-examiner to develop a rhythm, it requires movement, it requires demand of the courtroom. And if you’re stuck at your table or the podium, you think that takes some power away from you guys? Paul?
[24:44] Paul I—I don’t think so. Um, I, you know, it’s not like the movies. I’m not getting up in the—the witness’s personal space and shaking my finger or throwing documents at him, uh, or her. The trial I just completed in Los Angeles, we were—we were at the podium. The podium was approximately 30 feet, uh, from the witness stand. Very—oh yeah, it was a huge courtroom. Huge courtroom. And so in terms of the movement, I used the space around the podium. There were times where I would come to the side and just stand so he could see or she could see my full body profile, and here’s the podium over here, and I’m just having a conversation, uh, and showing you just like, “Okay, I’m coming at you. It doesn’t matter where I’m standing.” Uh, you have to adapt to the—the—the—I guess you could say the new normal.
The hardest thing in current times is not so much the podium; it’s the mask. And that’s the problem on cross-examination, especially if you’re using an interpreter as—as we did in my last trial. The interpreter’s trying to read your lips as he or she is transparent, uh, translating simultaneously or almost simultaneously. So the lip—the lip reading definitely gets to be, uh, more difficult. But podiums are not a problem; masks definitely are when it comes to anything in a courtroom.
[26:17] Bill Georgianne, you get the last word. How are you going to adjust to maybe some rules that you’re going to have to follow?
[26:24] Georgianne Well, in federal court here, for the most part, we were always required to stand behind the podium, even in closing. I’m used to it. Obviously, you know, it’ll adjust, but I have to admit it’s going to take a little bit of the fun away. Jurors are hard to please. You know, for them it’s a little bit of theatrics. And if I’m crossing someone, you know, part of what I’m doing is I’m leading them. I want them focused on me, not the witness. I want them focused on what I’m saying. And when you have to be standing in front of that jury box, right smack-dab in the middle of them, you know, it might make a difference. But you’re gonna have to—I’ll use a different inflection in my voice, or I just learned a piece of advice: I’m gonna stand to the side of the podium, maybe hold up a document that maybe doesn’t even really say anything but it’s like “ohh, what does that document say?” It’s the basketball schedule for next year.
[27:17] Bill Survive and advance. Well, Georgianne, Paul, thank you so much. Repeat guests on the podcast, I appreciate that. Uh, you guys, thank you so much for being on the podcast. To our audience, thank you again for participating in another episode of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We will see you next time.
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