lill II I I ill LarrPyo zner ReiPlolzyn er LLP AL itigPartaicotni ce 51116 tShtS .u,i 7t0e0 Denver, 8C0o2l0o2r ado (30839)3-6100 [email protected] www.rplaw.com RogeJr. D odd Spoh&rD eordP d. L. Dod&dB urnhPaC.m 70W1. A damSst reet P.OB.o1 x0 66 JacksoFnlvoir3li2ld2ea0, 4 V aldoGsetoar3,g1 i6a0 3-1066 (90340)9-6500 (22294)27-044 [email protected]@odmo ddlaw.com http://sdlitighatttipo:n/./cwowmw/. doddlaw.com/ FirEsdti tion i ® ® QUESTIAOBNOSUT TH IPSU BLICATION? FoCrU STOMER SAESRSVIISCTcEAo NnCcEe rrnienpgl acpeamgeenst, shipmbeinltrlsei,pn prgei,rn mti osros tihomenar,t ters, plecaasCleul s toSmeerrvD iecpea rta8mt0e 0n-t8 33-9844 emaciuls [email protected] orv iosuiirtn tercaucsttisovemere wvrei bcseai wttw ew .lexisnexis.com/printcdsc FoQrU ESTIoOrFN ESE DBAcCoKn cetrninhgpi usb lication, plecaas8le0l 0:- 44e6x7-t53.24 21 0 ore malinlc:p [email protected] Foirn formoanot tihoLenEr X ISNEXIS BMEANTDTpEHuREb Wl ications, plecaasulesal 8t 0 0-223-1940 orv iosuiortn lbionoek satwtow rwe. lexisnexis.com/bookstore ISB9N7:8 -1-4224-5546-3 © 200M9a ttBheenwd &eC ro mpaInnyca,m. e,m boeftr h Lee xisGNreoxuips. Alrli gsrh etserved. LexisaNnedx iKtsnh oew lBeudrglseot g or eagriest treardeedma anrMdki sc,hi isae tradeomfRa erekEd l sePvrioepre Irntcui.se,eus dn dleirc eMnastet.Bh eenwd iesar registtreardeeodmfM a artkt BheenwdP erro peIrntci.e s ® ® LexisNexis MattBheenwd& Ce orm paInny,c . EditOoffircieasl PO..B o7x5 87 CharlotVtA2e 2s9v0i6l-l7e5,8 7 800-446-3410 www.lexisnexis.com ProdNuucmtb 6e5r9 9510 (Pu6b5.9 95) ABOUT THE AUTHORS LARRY POZNER began his career as a State Public Defender. He is Past President of the more than 10,000-member National Association of Criminal Defense Lawyers. He is a partner in the 21-lawyer Reilly Pozner LLP where he handles both criminal cases and protracted commercial cases. His prac tice includes consultation on the preparation and delivery of difficult or com plex cross-examinations. Mr. Pozner is also litigation counsel to the Denver Broncos football franchise. He is co-author (with Roger J. Dodd) of America's best selling book on cross-examination, Cross-Examination: Science and Techniques, Second Edition (Lexis Nexis). Mr. Pozner was the NBC News legal analyst for the Oklahoma City Bombing trials and the JonBenet Ramsey case. He is a nationally recognized legal commentator and is frequently seen on such shows as the NBC Nightly News, the Today Show, Fox News, CNN, and Court TV. Mr. Pozner has been listed in The Best Lawyers in America for 20 consecutive years and has been named a Colorado Super Lawyer every year since the inception of that list. He served many years on the faculty of the University of Denver College of Law, where he was voted Best Professor. Reilly Pozner is a full-service trial firm, with experience in a broad range of litigation arenas from complex civil and commercial litigation and appel late work, to class actions, personal injury and mass tort litigation to crimi nal and white collar criminal defense. Across the country, RP lawyers represent both plaintiffs and defendants, focusing primarily on matters that involve significant liability exposure, pub lic visibility, and a high likelihood of going to trial. The firm's success on behalf of its clients stems from its fundamental orientation toward achiev ing victory at trial. RP's lawyers are regularly in court presenting cases and arguments to judges and jurors, and the firm approaches each case as if it will go to trial. That litigation posture pays dividends to clients, whether the ultimate resolution of their case is by settlement or verdict. ROGER J. DODD: Spohrer & Dodd is a firm of trial attorneys singularly focused on representing clients' interests in challenging cases in Florida, nationally and internationally. We have a record of taking and successfully concluding complex cases against formidable opponents, often cases which other firms are unwilling to handle. Many cases come to us through law firms who partner with us to achieve the best possible outcome for the client. We undertake each case with a talented team of attorneys and staff, the firm's intellectual and financial resources, and our network of specialized experts. As a partner in Spohrer and Dodd, a ten-lawyer firm, of Jacksonville, Florida, Roger J. Dodd and his partners are available to co-counsel cases 111 iv CROSS-EXAMINATION SKILLS FOR LAW STUDENTS throughout the United States in aviation accidents, trucking cases, medical malpractice and catastrophic personal injury and wrongful death cases. Mr. Dodd is a frequent guest and commentator on Court TV and other legally-oriented programs. He has recently provided trial commentary on such programs as Good Morning America and Geraldo At Large. Mr. Dodd is co-author of the best-selling legal title ever published by LexisNexis, entitled: Cross-Examination: Science and Techniques. Listed among the nation's most elite lawyers in The Best Lawyers in America since 1991, Mr. Dodd has also been named a Georgia "Super Lawyer" every year since the program's incep tion in 2004. Roger J. Dodd also maintains a practice in Georgia, Dodd & Burnham located in Valdosta, Georgia. DEDICATION To James W. Barley, for the person that he was, and to Matthew A Dodd and Andrew J. Dodd, for the persons that they will become. Roger J. Dodd Spohrer & Dodd Jacksonville, Florida This law school edition of our book is dedicated to the trial lawyers in the making. We too were students searching for a way to make ourselves into trial lawyers. We too were full of questions and doubts. We too struggled to find the techniques that would enable us to take on the momentous responsibility of protecting the rights of people and entities involved in litigation. With those struggles firmly in mind I make special mention of a few people to whom I owe a special debt. To Alan Dressler, San Francisco, California, my best friend and gambling partner in law school. Thank you for continually reminding me that what trial lawyers need to know is only rarely taught in the classroom. As a result we both graduated summa cum barely and we have both made a career as trial lawyers. To the memory of Frank Simons, head of Colorado Springs office of the Colorado public defender system. Here was a kind and gentle person who displayed great patience with me at a time in my career when I mistakenly thought that strong advocacy meant loud advocacy. To Steve Rench, former Training Director of the Colorado public defender system. You, were the one who first showed me how trial work is a completely interlocking set of skills rather than a hodgepodge of tricks performed in only vaguely related phases of a case. While I have had many fine teachers since, they all built upon the foundation you first provided. To Dan Reilly, my partner, my friend. Thank you for convincing me to undertake the frightening breadth and complexity of civil cases. The creation and growth of our law firm stands for the proposition that members of a law firm, and their support staff, can and should enjoy their careers and their relationships with each other. Larry Pozner Reilly Pozner LLP Denver, Colorado V FOREWORD (Foreword to Cross-Examination: Science and Techniques, Second Edition) This is simply the best book on the art and science of cross-examination ever written. Before I contemplate a major cross-examination in a criminal case or a deposition of a significant witness in a civil case, I literally go back to this book to stimulate my thinking. I give this book to all my law students, lawyers who work with me, and even my own children who have used it to great effect during their mock trial competitions during high school and college. Looping (on cross and direct), using trilogies, pyramiding trilogies upon trilogies, repeating a question to the witness who won't answer and other control techniques for the runaway witness, organizing by the chapter method, sequencing, and sliding off objections have all become indispensable concepts for teachers of trial practice. Larry and Roger are wonderful teachers and terrific lawyers. But bet ter still, they were smart enough to steal and refine all the good techniques employed by colleagues at the NACDL's National College of Criminal Defense Lawyers. We are all indebted for this marvelous piece of larceny because it takes real talent to organize and communicate the accumulated wisdom of your betters in an effective way. When I began practicing law and teaching in law school more than 30 years ago, it was conventional wisdom that good cross-examination was the product of talent-it couldn't really be taught. The best one could do, follow ing Irving Younger's Ten Commandments of Cross-Examination (which were really eight commandments), was to minimize one's losses. Larry Pozner and Roger Dodd have fundamentally changed the pedagogy. Good cross-exam ination, even great cross-examination, can be taught. Just follow the rules outlined in this seminal book and you can do better than just avoid disaster you can win your case. Barry Scheck New York City, New York October 28, 2004 Vll ACKNOWLEDGMENTS What seems like many years ago, my friend, Larry Pozner, came to me with the request that we should write a book about cross-examination. I laughed and told him that we knew how to talk not how to write. He insisted there was a need for the book. After many long hours of discussion and persuasion, and many gallons of Dewar's White Label, it turned out that we were both right. We are better speakers than we are writers and there was a need for the book. Roger J. Dodd IX