I suggest the following simple ten ways to avoid malpractice in litigation:

TRIAL TECHNIQUES AND TACTICS

July 2011

hmorrissette@handarendall.com

IN THIS ISSUE

David Hassett offers practical advice and tips on conducting cross-examination using real-life examples from
IADC members. Also, Chris Berdy reports on Alabamas switch from Frye to Daubert as the standard for
determining the admissibility of expert witness testimony. Lastly, Glenn Jacobson provides a One Minute Trial
Tip

Featured Articles
The Ten Commandments of Cross-Examination: A Trial Lawyers Commentary On
The Insights of Irving Younger
By David F. Hassett

Page 2

Finally Alabama Makes the Change from Frye to Daubert

By Christopher S. Berdy

Page 8

One Minute Trial Tip

By Glenn Jacobson

Page 10

ABOUT THE COMMITTEE

The Trial Techniques and Tactics Committee promotes the development of trial skills and assists in the
application of those skills to substantive areas of trial practice.
Learn more about the Committee at www.iadclaw.org. To contribute a newsletter article, contact:
Henry T. Morrissette
Vice Chair of Newsletters
Hand Arendall, L.L.C.
(251) 694-6364
hmorrissette@handarendall.com

The International Association of Defense Counsel serves a distinguished, invitation-only membership of corporate and
insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the
practice of law in order to serve and benefit the civil justice system, the legal profession, society and our members.

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July 2011

The Ten Commandments Of Cross-Examination: A Trial

Lawyers Commentary On
The Insights of Irving Younger
ABOUT THE AUTHOR
David F. Hassett is a founding partner of Hassett & Donnelly, P.C. and has
been trying cases for over 25 years. He has been recognized by Boston
Magazine as one of Massachusetts Super Lawyers for the last five years. His
areas of practice include Complex Civil Litigation, Toxic Tort Litigation
(including lead paint, carbon monoxide and asbestos) and Insurance
Coverage Litigation.
Cross-examination can be one of the most important and exciting aspects of trying a case.
But it is also one of the most challenging components of a trial, and errors in cross-examination can
at times make or break a case. One of the most prominent experts in this area is the late Irving
Younger, a former judge and Cornell Law Professor who crafted the Ten Commandments of CrossExamination. I have enjoyed listening to Youngers tapes on cross-examination and believe that
experienced and inexperienced attorneys alike can benefit from his expertise.
For this article we revisit Youngers Commandments and provide what we hope to be
helpful comments concerning them. In conjunction with drafting this article, we spoke to several
IADC members and obtained from them a few real-life examples of situations when they adhered to
(or departed from) Youngers Ten Commandments1, which are:
1. Be Brief
Be brief, short and succinct. Cross-examination should be a commando raid. In
and out. It is not the invasion of Normandy. You should never try to make more than
3 points on cross-examination. Two points are better than three and one point is better
than two.
The number of points you need to make on cross is obviously dependent upon the particular
witness and the complexity of your case. The issue here, however, is to keep the examination short
and to the point. Today, more than ever before, we are being told that the attention span of the
average juror is shrinking. If you spend too much time with the checklist and set-up type of
questions you risk losing the interest of the jury. Get to the point you want to make in a clear and
concise manner and, as Irving Younger is fond of saying, SIT DOWN!
The principle to bear in mind here is less is more.
1

Summarized from The Art of Cross-Examination by Irving Younger. The Section of Litigation Monograph Series,
No. 1, published by the American Bar Association Section on Litigation, from a speech given by Irving Younger at the
ABA Annual Meeting in Montreal Canada in August of 1975. See also The Irving Younger Collection: Wisdom & Wit
from the Master of Trial Advocacy, published by the American Bar Association, 2010.

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International Association of Defense Counsel

TRIAL TECHNIQUES AND TACTICS NEWSLETTER

2.

July 2011

Use Plain Words

A jury will better relate to you when you speak plain English. Use short questions and
plain words.
I think it is important to articulate your questions in a clear and meaningful manner. An
awkwardly worded question will lead to confusion. The point here is to keep it simple and dont try
to appear smarter than everyone else in the courtroom by using flowery language.
3.

Use Only Leading Questions

Never, never, never on cross-examination ask anything other than a leading question.
Cross-examination is not the occasion for finding out about the case. Crossexamination permits you to take control of the witness, take him where you want to go,
and tell your story to the jury through the witness.
The Hallmark of any good cross is controlling the witness. It is the use of leading questions
that permits the lawyer to maintain control over the witness.
An effective cross should have an end game. The Perry Mason cross which results in the
witness recanting all of his direct testimony is not a reasonable goal.
Clear, concise and leading questions will not only allow control over the witness and the
responses made by the witness, but will also demonstrate your skill as a lawyer and show the
confidence you have in your case.
4. Never ask a question that you do not know the answer to (unless you dont care
what the answer is).
This is not a deposition. This is not the time to discover new facts about your case.
I do not agree completely with this premise. I dont believe it is practical to actually know
the answer to every question asked on cross. I do believe, however, that you should never ask an
open-ended question that would allow a witness to potentially undermine your entire case. When a
need arises to pursue an issue that came out on direct that you may not have expected, you can
always ask narrow, leading questions to carefully chip away at the testimony. In other words, test
the waters before jumping in head first. Having said that, the following humorous anecdote from an
IADC member clearly demonstrates the harm resulting from violating this commandment:
I was trying a high stakes case in which the plaintiff contended that he was destitute as a
result of the defendants negligence. We doubted this claim. On cross-examination of
the plaintiff, I asked exactly one non-leading question. This is how it went:
Q. Mr. Smith, your passport shows that you've traveled outside the country extensively during the
past18 months?

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A.

Yes, I've been out of the country.

Q.

In fact, Mr. Smith, you've been to Jamaica?

July 2011

A. Yes.
Q. The Bahamas?
A. Yes.
Q.

Costa Rica?

A. Yes.
Q.

Now Mr. Smith, I take it you don't travel for free?

A.

Actually, I do.

Q.

Excuse me?

A. My brother is a pilot with American Airlines. I fly for free.

Q.

I see.2

A colleague of mine related a story that demonstrates that this commandment applies to
judges as well. In the course of prosecuting a murder trial, my colleague and opposing counsel
were called to side bar by the presiding judge. While looking to the rear of the courtroom, the
judge asked counsel if the elderly woman observing the proceedings was the defendants
grandmother. As my colleague turned to look toward the back of the courtroom, he recalls defense
counsel immediately responding, Judge, thats my wife!
5.

Listen to the witnesses answers.

Seems self-evident, but youve got to make yourself do it.

In order for you to complete a smooth and effective cross that holds the jurors attention,
you must listen to the witness answers. You cant approach cross-examination in the courtroom
with a checklist waiting to ask question #5 as soon as answer #4 is provided. First and foremost,
you will lose an opportunity to counter an unfavorable answer by posing a follow-up question.
Second, you should presume (hope) the jury is indeed listening and if you ask questions that
suggest you are not listening, you will certainly lose credibility with the jury.

Thanks to Spencer Silverglate of Clarke Silverglate, P.A. in Miami, Florida for his story.

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International Association of Defense Counsel

TRIAL TECHNIQUES AND TACTICS NEWSLETTER

6.

July 2011

Do Not Quarrel

Do not quarrel with the witness on cross-examination. When the answer to your
question is false, irrational or contradictory, sit down. You do not want to elicit a
response that ends up rehabilitating the witness.
I am not in total agreement with this one. While it certainly is not appropriate to push back
every time a witness gives an unfavorable response, I believe the jury gives us the license to
directly challenge a witness who has proffered a false or contradictory answer particularly an
expert witness. The point is not to quibble with the witness over unimportant details that dont
impact your case.
If, however, the witness responses are damaging to your case, I believe in certain instances
the jury would expect you to be confrontational. Like many issues during trial, this is a judgment
call you will need to make on your feet.
7.

Avoid Repetition

Dont allow a witness to repeat his direct testimony. The jury is more likely to believe
the witness story if it is repeated during cross-examination.
This is extremely important and needs very little explanation. It is essential that you not
assist your opponent in underscoring his case during your cross-examination.
8.

Do Not Allow Witness Explanation

That is the job of your adversary.

This represents the very reason that leading questions are designed to elicit yes or no
answers. The following story from one of our members illustrates the point:
My client, an emergency room physician, was testifying in a jury trial where he was being
accused of negligently causing an esophageal tear during emergent intubation attempts on a patient
that was suffering from status asthmaticus.
On cross examination, the claimants counsel asked my client, Do you agree that you
improperly intubated by client and caused the tear of her esophagus? My client responded in the
negative, at which point claimants counsel violated the 8th commandment by asking, Well, why
do you feel that that is the case?
At that point, my client, who was chomping at the bit to get his entire story out to the jury,
began relating in extreme detail what had happened to the claimant during the entirety of her ER
presentation up to the time of the intubation attempt. After my client had been speaking for about

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TRIAL TECHNIQUES AND TACTICS NEWSLETTER

July 2011

10 minutes, claimants counsel interrupted my clients testimony and turned to the Judge, noting
that my client was now giving a narrative and should be required to respond to further questioning.
The court, who had been intently listening to my clients explanation of the course of
events, looked at claimants counsel and replied, Counsel, you asked the question why? The
witness will be allowed to respond to your question. With that, my client continued to testify for
another 10 minutes to explain his situation, after which I am pretty certain that the jury had now
heard enough to conclude that my client was in fact not negligent in proceeding with and
performing the intubation which in fact resulted in an esophageal tear.
My client was the first witness in the case. I am sure claimants counsel wished he hadnt
violated the 8th commandment.3
9.

Limit Your Questioning

Dont ask the one question too many. After you have made your point, stop and sit
down.
The best illustration of this principle is the example used by Irving Younger himself when
discussing this commandment:
The prosecutor sits down after completing his direct-examination of the eyewitness to an
incident that gave rise to the defendant being charged with assault and battery and mayhem. The
defense lawyer in cross-examining the witness gets to a point in the cross when the witness
concedes that he never observed the defendant bite the nose off of the victim. At this point Irving
Younger suggests that the defense lawyer sit down. Instead, feeling good about his crossexamination to this point, he asks the witness the following question and elicited the following
response:
Q: If you never saw my client bite the nose off of the victim, then why are you here today claiming
that my client committed mayhem?
A: I saw him spit it out.
Another example of the danger in violating this principle occurred when I was trying an
accident case where speed was critical to the determination of liability. I had just completed the
direct testimony of my accident reconstructionist who concluded that my client was traveling at a
speed of 10 m.p.h. at the time of the accident. His testimony was in contrast to the plaintiffs
expert, who had testified that my client had been traveling at a speed of 20 m.p.h.
On cross, the plaintiffs lawyer got my expert to concede that his formula to ascertain the
speed of the vehicle relied, in part, on the weight of the vehicle. He was able to show that my
3

Thanks to John Nishimoto of Ayabe, Chong, Nishimoto, Sia & Nakamura LLP in Honolulu, Hawaii for sharing his
story.

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TRIAL TECHNIQUES AND TACTICS NEWSLETTER

July 2011

expert didnt actually weigh my clients vehicle, but relied instead on the vehicle manufacturers
specifications. He then proceeded to ask the following questions:
Q: So you didnt account for the two spare tires and luggage that were in the defendants trunk at
the time of the accident, did you?
A: I did not.
Q: And if the defendants car were heavier, that would change your estimate of the speed?
A: Yes, it would.
Editorial note: At this point, the lawyer should have quit and sat down. Had he done so, I do not
know that I would have been able to rehabilitate this witness because I did not know how the speed
would change. As I was trying to think of a reason to take a break, my opponent then asked:
Q: How would that change your estimate:
A: I would have to conclude that the defendant was traveling even slower.
So the next time youre tempted to ask that one final question to tie it all together, just SIT
DOWN!
10. Save The Ultimate Point of Your Cross for Summation
This is a fairly simple principle. The purpose of cross is to elicit the favorable testimony that you
will use to support your argument to the jury during closing. The purpose of closing is not to
rehash the testimony, but to explain what the testimony means and persuade the jury that your client
should win.

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TRIAL TECHNIQUES AND TACTICS NEWSLETTER

July 2011

Finally Alabama Makes the Change from Frye to

Daubert
ABOUT THE AUTHOR
Christopher S. Berdy is a partner at Christian & Small, LLP in
Birmingham, Alabama, where he has significant experience in a wide variety
of complex civil litigation matters, focusing primarily on the defense of
distributors and manufacturers in product liability claims, health care
providers in medical malpractice actions, and individuals and businesses in
catastrophic personal injury and wrongful death claims and business disputes.
Mr. Berdy is Chair of the IADC Alternative Dispute Resolution Committee.
1992
Hey Stan, youre in Ala*^#-Bama. You come from New York
There is no way this is not going to trial.
- Vinny Gambini (Joe Pesci), My Cousin Vinny
2011
Alabama is open for businessopen for new business and new
jobsand is no longer a haven for lawsuits.
- William W. Brooke, Chairman of the Board, Business Council of
Alabama
I.

Introduction

In the 1980s and 1990s, Alabama earned the nickname tort hell for its headlinegrabbing jury verdicts.1 In 2002, Alabama was listed on the American Tort Reform Associations
(ATRA) Dishonorable Mention list.2 After hosting back-to-back jury verdicts that ranked
among the nations highest$11.9 billion in 2003, and $1.3 billion in 2004Alabama returned to
ATRAs list of Judicial Hellholes, although down-graded to the Watch List.3
However, with the passage of five legal reform bills on June 9, 2011, Alabama is now open
for business and is no longer a haven for lawsuits.4 Of particular importance to trial lawyers
and their clients is the momentous shift implemented by the all-Republican Alabama legislature and
signed into law by Alabamas Republican Governor. In rejecting outright the Frye general
1

P. Rawls, Alabama in Spotlight for Record Lawsuits, Anniston Star, Dec. 20, 2005.
Id.
3
Id.
4
http://www.bcatoday.org/news_detail.aspx?id=37402.
2

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TRIAL TECHNIQUES AND TACTICS NEWSLETTER

July 2011

acceptance standardthe long-standing standard in Alabama, the legislature formally adopted the
well-settled standard for the admissibility of expert testimony set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc.6 Beginning January 1, 2012, Alabama joins the majority of states that rely
on Daubert as the standard for determining the admissibility of expert witness testimony.7
II.

Reluctance to Change

For years, Alabama litigants in civil cases have repeatedly urged the Alabama Supreme
Court to formally adopt the more rigorous Daubert standard, but at every turn, the Court has
declined to do so. Among the most common reasons for declining change is the Courts outcome
determinative view: applying Daubert to the particular cases before it would not have changed the
end result.8 Likewise, the Court has cited a reluctance to legislate or render advisory opinions and
parties failure to present the issue to the Court as additional reasons to retain the outdated Frye
standard.9
III.

Implications of Change
Not surprisingly, the new legislation has far-reaching implications.

For trial courts in each of Alabamas sixty-seven counties, the new statute imposes upon
them the role of gatekeeper, responsible for determining the scientific relevance and reliability of
proffered expert testimony, as well as an almost certain increase in motion practice over the
admissibility of parties disclosed experts testimony. For experts seeking to testify in Alabama,
Daubert ensures accountability by requiring that they employ reliable scientific methodologies in
developing their opinions.
For litigants and trial lawyers, application of Daubert means more consistency and
predictability in the admissionor exclusionof scientific opinion evidence. Indeed, as the GOP
stated, [a] stricter standard for admitting expert testimony helps business, and indeed all litigants,
in insuring valid scientific and other technical expert testimony has a solid foundation and basis.10
IV.

Conclusion

At long last, Alabama has made the change from Frye to Daubert. In so doing, Alabama
may no longer have a near-permanent place on the list of Judicial Hellholes, and is indeed, open
for business.
5

Courtalds Fibers, Inc. v. Long, 779 So. 2d 198, 202 (Ala. 2000); Southern Energy Homes, Inc. v. Washington, 774 So.
2d 505 (Ala. 2000).
6
509 U.S. 579 (1993).
7
See Alabama Senate Bill 187; Ala. Code 12-21-160, as amended.
8
See, e.g., Vesta Fire Ins. Co. v. Milam & Co. Constr., Inc., 901 So. 2d 84, 106 (Ala. 2004); Martin v. Dyas, 896 So. 2d
436, 441 (Ala. 2004); General Motors Corp. v. Jernigan, 883 So.2d 646, 661-62 (Ala.2003); Slay v. Keller Industries,
823 So.2d 623, 626 . 2 (Ala.2001).
9
See, Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 517 n. 5 (Ala.2000); Chestang v. IPSCO Steel, 50
So.3d 418, 438 (Ala.2010).
10
http://www.algop.org/node/1283.

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International Association of Defense Counsel

TRIAL TECHNIQUES AND TACTICS NEWSLETTER

July 2011

THE ONE MINUTE TRIAL TIP

The brain child of IADC Past President Rob Hunter, each of our newsletters features a quick,
practical trial tip.

I was recently retained as trial counsel on the eve of trial by an insurance carrier. Plaintiff
claimed that she slipped in the insured's premises while going up stairs leading from the rest room,
which allegedly was flooded with 1/2 inch of water due to an overflowing toilet. It was claimed the
water on the steps had been tracked up the steps from the restroom. The insured denied the
existence of water on the steps or, for that matter, that the restroom was flooded.
As is my practice, I went to meet and prepare the insured at his place of business, which was
the location of the trip-and-fall accident. Rather than rely on the investigation, I wanted to visualize
the scene. Although the steps and the area around the accident scene were as photographed, the
investigator hadn't gone into the restroom where plaintiff claimed the water had come from. Had
this been done, the investigator would have discovered (and hopefully photographed) two drains
built into the floor! Although I didn't have photos to introduce into evidence at trial, I was able to
elicit testimony concerning the drains, raising further doubt about the "flood" and plaintiff's claim.
In my mind, where there is any question about the manner in which an accident is alleged to
have occurred, there is no substitute for an attorney's accident scene inspection early on in the
handling of a file. There is no telling what the eyes of an attorney might observe that can sharpen
the focus of the defense of an action. By the way, the jury returned a unanimous verdict for my
client.

ABOUT THE AUTHOR

Glenn Jacobson is a founding member of Abrams, Gorelick, Friedman & Jacobson,
P.C. in New York City. Mr. Jacobson has been litigating and trying cases to verdict
in the New York and New Jersey state and federal courts for more than 30 years. He
has successfully briefed and argued appeals in the New York Appellate Division,
First and Second Departments, as well as the United States Courts of Appeals for the
Second and Third Circuits. Mr. Jacobson regularly defends products liability, liquor
law liability, premises liability, legal malpractice, transportation and significant
property damage and first-party actions.

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International Association of Defense Counsel

TRIAL TECHNIQUES AND TACTICS NEWSLETTER

July 2011

PAST COMMITTEE NEWSLETTERS

Visit the Committees newsletter archive online at www.iadclaw.org to read other articles published
by the Committee. Prior articles include:
MARCH 2011
Interview with the 2010 Trial Academy Director, Jep Barbour
Henry T. Morrissette
FEBRUARY 2011
Handshakes that Turn Into Wrestling Matches Discovery vs. Trial Depositions, Rule 30(b)(6), and
The 100 Mile Rule
Niall A. Paul, Timothy D. Houston, and Keith D. Fisher
NOVEMBER 2010
Strategy For Defending Rule 30(b)(6) Deposition Notices When Corporate Information Is No
Longer Known or Reasonably Available
Roy Alan Cohen and Todd C. Richheimer
AUGUST 2010
Mock Jury Observations
Steve Anderson
JUNE 2010
Interview with the 2010 Trial Academy Director, Debra E. Pole
Henry T. Morrissette
MARCH 2010
What to Do When Opposing Counsel Uses the Internet as a Weapon: Tools to Combat the
Publication of Discovery Materials and Extrajudicial Statements on the Internet
Andrew Kopon, Jr., and Sarah E. Flotte
AUGUST 2009
Not So Random Musings on Trying Cases
Margaret Fonshell Ward
JUNE 2009
How Nice Guys Finish First
Matthew D. Keenan
APRIL 2009
Proposed Changes to Rules 26 and 56 of the Federal Rules of Civil Procedure
Bruce R. Parker and D.S. Gray

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