Cross Examination in Employment Trials
Paul D. Seyferth1
This article outlines the “control method” of cross examination in employment trials, with special attention to its use by those representing corporate defendants.
The Atlantic is calm today. The beach, rearranged by a tropical storm, is incredibly wide and white. Before I cast, I use pliers to clamp down the barbs on my hooks. That makes it harder for me, but easier for the fish. It also forces me to be a better fisherman.
So it is with my practice. Over the years, I have learned to clamp down the barbs during trial.
***
How, I try cases by using my opponent’s strengths and my own, more trial by aikido than by judo.2
I. Introduction
Cross examination presents unique challenges to the defense lawyer in employment trials. A typical employment trial involves a plaintiff accusing a company of highly improper conduct, such as discrimination, unlawful termination of employment, or harassment, resulting in an adverse employment action. The company, which almost always denies such conduct, is essentially in the position of proving a negative, i.e., that it didn’t treat the former employee unfairly, that it didn’t discriminate, or that it didn’t act recklessly, etc. Under such circumstances, the company is Goliath, and the employee is David.
Juries expect a lot from defense lawyers under such circumstances. Rightly or wrongly, juries expect defense lawyers to be better prepared, more polite, and generally more even-handed when representing the interests of a company against a lone individual. Perhaps the most obvious example of this expectation is Kimzey v. Wal-Mart Stores, Inc.,3 the now famous $50 million sexual harassment verdict (later reduced to $385,001) that resulted, at least in part, from the defense attorney giving the plaintiff “the middle finger” during the course of the plaintiff’s cross examination.4 Anecdotal evidence and juror responses to post-trial questionnaires bear this out as well.5
Most cross examinations that do not go well seem to have a common denominator: loss of control of the witness. The “barbs,” in effect, become “unclamped,” and the results can be devastating for defense counsel’s client. The results of this combination are disorganized, heated and/or lengthy cross examinations. Rare is the cross examiner who sits down after such a cross examination and thinks things have gone well. It therefore stands to reason that a premium must be placed on control of witnesses in employment discrimination trials.
One particularly effective method of avoiding these pitfalls is the method of cross examination described by Larry S. Pozner and Roger J. Dodd in their book, Cross Examination: Science and Techniques.6 Because this method of cross examination emphasizes control of witnesses, it seems appropriate to label it the “control method” of cross examination. Although the focus of Pozner and Dodd’s book is primarily on criminal cases, the control method applies with equal force to civil trial work, and to employment trials in particular. One reason for this, perhaps, is the essential similarity between criminal defense work and employment discrimination defense work: both areas involve strong accusations of intentional wrongdoing, both areas tend to be highly emotionally charged, and both areas are heavily focused on the requirement that plaintiff (or the state) carry her burden of proof.
In this author’s experience, the control method allows the employment defense lawyer to make points in a crisp, fair and less confrontational manner; because of the circumstances and juror expectations described above, the control method is ideally suited for defense lawyers in employment trials. This paper will outline generally the basics of the control method, address some of the specifics of the control method as they relate the structure of cross examinations, and, finally, describe some of the specific applications and potential nuances of this method.
II. The Basic Tools of the “Science” of Cross Examination
Anybody who spends time in the courtroom would be well served in reading the Pozner and Dodd book, or attending one of their seminars. What follows is, by necessity, a highly condensed summary of the control method. According to Pozner and Dodd, witness control is accomplished by adherence to three basic rules during cross examination: (1) counsel should ask leading questions only, in the form of declarative statements; (2) counsel should ask questions that establish only one fact at a time, thus leading to short cross examination questions; and (3) counsel should ask questions in a logical progression, with only specific and defined goals in mind.
As one example of how these techniques work in practice, consider the following cross examination sequence of a co-worker friend of the plaintiff, an example that will be referred to throughout this article, because such cross examinations are routinely necessary in employment trials. The specific and defined goal of this cross is to establish that the witness has no direct knowledge as to why his/her co-worker’s employment ended, thus demonstrating to the jury that this witness – notwithstanding the (speculative and sympathetic) testimony elicited on direct examination – has little to contribute to the question of whether the plaintiff’s termination was motivated by discrimination:
Q: Good Morning, Ms. Smith, I have only a couple of questions for you.
A. Okay.
Q: You worked at ABC Co.?
A: Yes.
Q: You were a file clerk at ABC Co.?
A: Yes.
Q: You worked with Ms. Jones?
A: Yes.
Q: Ms. Jones was a friend of yours?
A: Yes.
Q: She still is a friend of yours?
A: Yes.
Q: Even to this day?
A: Yes.
Q: At the Company, you were not involved in the hiring of personnel?
A: Correct.
Q: You were not involved in the firing of personnel?
A: Correct.
Q: You were not involved in employment decisions made at the Company?
A: Correct.
Q: You were not involved in the decision to fire Ms. Jones?
A: Correct.
Q: You do not know what Ms. Jones’ evaluations said about her job skills?
A: Correct.
Q. You do not know whether she yelled at her supervisor on her last day?
A. Correct.
Q: You do not know why the Company fired Ms. Jones?
A: Correct.
Q: Your information about Ms. Jones’ termination is what others have said?
A: Yes.
Q: In fact, in your own words, all you know why Ms. Jones was fired is “rumors”?
A: Yes.
Q: Thank you, Ms. Smith, that’s all I have for you.
A. Okay.
The above line of questions accomplishes the expressed goal of showing why the witness has no personal information about plaintiff’s discharge, and thus why her testimony has little substantive value to the jury.
In addition, however, the above example emphasizes the technique of “declaring” statements by defense counsel, agreed to by the witness. This example demonstrates how the control method limits each cross examination question to one new fact at a time, thus leading to short statements by counsel. Finally, the effectiveness of this method is buttressed by the pace of the cross examination. Short declarative questions can be asked at a smooth, brisk rate, and in a logical sequence, thus leaving the witness little time to quibble or argue.
With this example and these three basic tools of the control method in mind, let us now turn to some additional aspects of the control method.
III. Three Ways to Organize Your Cross: The Structure of the Cross Examination
How is the best way to structure a cross examination? It is beyond the scope of this article to examine all of the subtleties of the control method. There are, however, three main elements that the control method takes advantage of to structure most cross examinations. First, the organizing principle of the cross should be defense counsel’s theory of the case. Second, the actual organization of the cross should proceed chapter by chapter (or topic by topic), in a logical and ordered sequence. Finally, the content of the cross is determined by and limited by “facts beyond change.”7 These issues are defined and discussed below.
1. Tying Cross Examination to the Theory of the Case Will Shorten Your Cross.
It is safe to say that the longer the cross examination lasts, the more the likelihood of loss of control of the witness. It therefore follows that defense counsel should ask the minimum number of questions necessary to establish the point. Pozner and Dodd emphasize that the best way to shorten or tighten cross examinations is by tying cross examination questions to one’s theory of the case. Pozner and Dodd define “theory of the case” in the following way:
The theory of the case is more than a strategy – it is a philosophy: It is the reasoning by which the advocate is entitled to the verdict she is seeking. The theory of the case is advanced through strategy. That is to say, all of the phases of the case are executed in a way to move the jury closer to accepting the advocate’s theory of the case.8
Nowhere is this more true than in the area of cross examination. As Pozner and Dodd emphasize, “some lawyers try cases with a strategy, but with no theory of the case. They cross-examine to prove every inconsistency, though they put up no affirmative notion of what it is their side is saying.”9 These “lawyers simply lash out at everything proved by the opponent without regard for whether those facts have any bearing on the outcome sought by the cross-examining party.”10 According to Pozner and Dodd, by focusing cross examination on the theory of the case, a through-line is established that allows short, direct, and crisp examinations.11
Applying these concepts to the sample cross of co-worker Ms. Smith in the preceding section, one can see that the cross of Ms. Smith can be kept short, and without undue confrontation, because only one element of her testimony is necessary to support defense counsel’s theory of the case, i.e., that she really does not actually know why her co-worker was fired. This, in turn, bears on the judge’s instructions about the plaintiff’s burden of proof, and/or the jury’s need to avoid speculation as to why the plaintiff was fired from her job. Although in our example the witness could undoubtedly have been nit-picked on several other items relating to her bias, her job history, and the like, unless those items in some way relate to defense counsel’s theory of the case, questioning on those items should be avoided.
2. The “Chapter” Approach Will Help Focus Your Cross
If one’s theory of the case is the organizing principle around which cross examinations are structured, the organizing principle within the actual cross examination is the “chapter method” to questioning.12 “Cross-examination is a series of goal-oriented exercises, each designed to establish one particular point useful to the questioning party.”13 In the vernacular of Pozner and Dodd, each series of such questions is referred to as a “chapter.” In our example from above, there is a single chapter involved in the cross: i.e., to establish that plaintiff’s friend/co-worker really has no useful information, other than rumors, to support the plaintiff’s claim.
Obviously, in more elaborate cross examinations, there will be multiple chapters. For instance, the plaintiff’s cross typically will involve no fewer than 6-10 chapters of questioning. For each such chapter, however, defense counsel should be able to articulate the express purpose of the series of questions, and, more specifically, how each such series of questions ties to defense counsel’s theory of the case. A list of the chapters of counsel’s cross would thus (ideally) read like the major portions of the elements of defense counsel’s opening statement and/or closing argument. For example, the title of the single chapter of the cross examination of Ms. Smith might be, “Ms. Smith’s speculation and rumors do not carry plaintiff’s burden of proof.”
The chapter approach to cross examination is a very useful method to focus the particular lines of cross examination in an employment case. By thinking of cross examination in terms of chapters, rather than as a list of wide-ranging questions, defense counsel’s ability to deliver short, concise and courteous cross examinations is enhanced.
3. “Facts Beyond Change” Will Become the Headlines of Your Cross
The successful cross examination is one that focuses on “facts beyond change” helpful to the defense side of the case.14 “Facts beyond change are facts that will be believed by the jury as accurate, honest, and truthful, regardless of best efforts to dispute and modify them.”15 Put another way, facts beyond change are those facts that defense counsel cannot credibly dispute, or that plaintiff’s counsel cannot credibly dispute. In the words of Pozner and Dodd:
Any successful theory of the case must either incorporate all facts beyond change, or be neutral to them. That is to say, a theory must either build upon the facts beyond change, or stand in harmony with them.16
By focusing on facts beyond change, defense counsel has a “built in” structure to the particular topics of the cross examination of most witnesses. This, again, will lead to shorter and more effective cross examinations.
The most obvious facts beyond change in employment trials will be the witness’ previously sworn deposition testimony or prior affidavits. These statements under oath will be considered powerfully relevant by the fact finder, especially if they bear on significant issues in the trial. Other facts beyond change in an employment lawsuit will generally involve elements of the “employee paper trail,” i.e., those documents from the employee’s personnel file, those documents related to any employer investigations, those documents related to comparable employees, and any other documents related to plaintiff’s employment with the defendant.17
Turning again to the chapter of cross examination about Ms. Smith, used above, assume that Ms. Smith claims in her direct examination at trial that she overheard a sexist remark made about Ms. Jones prior to Ms. Jones’ discharge. Assume further that Ms. Smith signed a statement prior to trial, where no mention of any such statement was previously made. The previous statement would constitute a classic “fact beyond change,” and a cross examination chapter on that particular issue might consist of the following:
Q: Ms. Jones, you stated earlier that you overheard a remark concerning Ms. Smith’s gender on date X?
A: Yes.
Q: You remember that quite clearly?
A: Yes.
Q: Let me hand you Defense Exhibit Y. Do you recognize that document?
A: Yes.
Q: This is your statement?
A: Yes.
Q: This is your signature?
A: Yes.
Q: You gave this statement two weeks after Ms. Smith’s discharge?
A: Yes.
Q: You gave this statement to an investigator for the Federal Equal Employment Opportunity Commission?
A: Yes.
Q: You signed this statement at the bottom of the page?
A: Yes.
Q: You signed this statement under penalty of perjury?
A: Yes.
Q: Ms. Smith, please show the jury in Exhibit Y where you told the EEOC that you had overheard this allegedly discriminatory remark.
A: I can’t. It’s not there.
Obviously, a statement to federal investigators is a fact beyond change. The fact that the sexist remark is not in that statement – a classic impeachment by omission – is a significant problem for Ms. Jones. There is no need for defense counsel to harp on this fact. A simple chapter of cross examination on the document proves the point. Explain this omission in closing argument.
Facts beyond change are the headlines of the cross examination; they will be the elements that defense counsel can use to either reign in the plaintiff or other witnesses, or otherwise bear on the credibility of these witnesses.
IV. Three Specific Techniques and Applications For Employment Trials: Impeachment, Looping, and the Sequencing of The Cross
The basic tools of the control method are straightforward. Moreover, the control method presents unique insights into how to structure cross examinations. This section now deals with some common tactical issues prevalent in typical cross examinations: impeachment, persuasion, and sequencing of the cross.
1. Impeachment Will Become Less Necessary During Your Cross
The first benefit of the control method is that impeachments will become far less frequent during the course of a typical cross examination. While it is true that “impeachments occupy a special place in cross-examination,” one of the great advantages of the control method is that impeachments generally are unnecessary during the course of defense counsel’s cross examination.18 The pace of the control method diminishes greatly the need to engage in any kind of impeachment. Moreover, if impeachment does become necessary, as in the preceding section regarding Ms. Jones’ allegedly having overheard a discriminatory remark, the impeachment will be highlighted because it is indeed so rare.
2. Looping Will Make Your Cross Examinations More Persuasive
“Loops” are questioning techniques designed to give emphasis to particular points. “Looping is a method by which an important or favorable point is reemphasized by repeating the information to be emphasized in the body of another question.”19 In employment cases, depositions can be used as a fertile ground for the discovery of terms or phrases that can be looped into a series of questions.
An example of a successful loop from a plaintiff’s cross examination, involving a chapter related to an exit interview form, might consist of the following:
Q: Ms. Jones, on your last day of employment you filled out an exit interview form?
A: Yes.
Q: Your exit interview form is in front of you, marked as Defendant’s Exhibit Z?
A: Yes.
Q: An exit interview form is a document where you get to tell your employer what you really think about your employment?
A: Yes.
Q: You filled out this form before you went to see an attorney on this case?
A: Yes. These are my words.
Q: You filled out this form by using your own words?
A: Yes.
Q: Your goal in filling out this form was to tell the truth?
A: Yes, to tell the truth. I always tell the truth.
Q: Given that you always tell the truth, can we agree that you were being candid when you stated on Exhibit Z that you “enjoyed your job.”
A: Yes.
Q: Given that you always tell the truth, can we agree that you were being candid when you stated on Exhibit Z that you “respected your supervisors.”
A: Yes.
Q: Given that you always tell the truth, and given further that this exhibit contains your own words, can you show us anywhere on Exhibit Z where you complained that you were treated unfairly by the company?
A: No. I guess I was too rushed to add that.
Q: Ms. Jones, you weren’t too rushed to write down your social security number?
A: No.
Q: You weren’t too rushed to write down your birthdate?
A: No.
Q: You weren’t too rushed to fill out every other question on Exhibit Z?
A: No.
Q: Even though you were given the opportunity to do so, you did not criticize your supervisor in any way on Exhibit Z?
A: Yes. I guess so.
3. Sequencing of the Cross Is One Key To Controlling the Witness
The sequencing of cross examination is always a dilemma at trial. Which topics should be addressed first? Which should be addressed last? The control method establishes the view that the most important element of sequencing the cross examination is to start it with a chapter that will establish the proper pace or rhythm. Pozner and Dodd state it this way:
[T]he skillful cross-examiner, understanding the dangers and having done what she can to decrease the risks, must still abide by another guideline: Do not attempt to begin or conclude a cross-examination with a risky chapter.20
This rule is especially apt in employment cases, because there are usually several chapters that can be addressed that do not involve risk. Such chapters might include job responsibilities, dates of employment, and the like. Defense counsel should resist the temptation to “start with a bang,” as is often suggested by cross examination “experts.” By starting the cross with less risky chapters, the cross examiner can establish control of the cross examination from the outset. This, in turn, establishes a rhythm to the cross for the more risky chapters to come.
V. Three Additional Facets of the Control Method: Practicing the Control Method, Knowing When To Break the Rules, and “Drama and Pace”
Now, let us turn to three additional facets of the control method: practice, breaking the rules, and drama and pace.
1. Practicing the Control Method During Depositions Creates Strong Trial Skills
One potential pitfall of the control method is that it is, initially, an awkward method of asking questions. That is why the method needs to be practiced.
The opportunities to practice the control method abound, especially for the employment lawyer. The most obvious ground to practice these techniques is at depositions. Depositions are ideally suited for practicing the techniques of short declarative questions, use of chapters, and establishing facts beyond change. Moreover, within the deposition itself, defense counsel can practice looping answers from the witness, various methods of impeachment, and further experimentation with the sequence of chapters. The goal of the deposition should thus not only be to explore all factual elements with the witness, but also to lay the groundwork for a clean, controlled and effective cross examination at trial.
There is no reason for defense counsel to be wary of this technique at trial. By practicing the techniques outlined above during depositions, the confidence necessary for an effective trial cross examination will grow, resulting in even better cross examinations.
2. “Breaking the Rules” of the Control Method Pays Dividends
One of the most interesting side effects of the control method is its effect on the rhythm of the cross examination. There will be times when the only word out of the plaintiff’s mouth during cross examination is “yes.” The “tick-tock” effect of the questioning needs to be broken up at times, however, if only to add some drama to the nature of the questioning. Perhaps the best method for doing this is to simply ask the “why” question during the cross examination, i.e., ask the witness why he or she did something, or failed to do something. Obviously, this should only be done when there is no risk of harm from the answer. Famed trial attorney Vincent Bugliosi has explained this technique in the following way:
If I feel a witness is lying, I just about know, in advance, that he would not have acted, in a given circumstance, the way a person telling the truth would have acted. Frequently, I already have evidence that he did not. To expose the fact that he is an untruthful witness, I usually employ the following technique to block off the exits. First I elicit answers from the witness on preliminary matters, answers which, when totaled up, show he would be expected to take a certain course of action, or act in a certain way. The witness having committed himself by his answers, I then ask him what course he in fact took, and follow this up with the “why” question. If a witness is unable to justify or explain conduct of his which is incompatible with the behavior of a normal person under the same circumstances, the jury will usually conclude that his testimony is suspect.21
Although this technique violates the basic rules of the control method, it can be highly effective, both as a means of emphasis and to add some zest to the pattern of questioning.
3. Drama and Pace Need to Be Carefully Monitored
Drama and pace are distinct issues that must be borne in mind when using the control method. Simply stated, the control method can be so effective that counsel’s cross examination is, literally, too “clean.” Counsel, in effect, will be “testifying” during the entire cross examination. It is, therefore, important to break up the questions with the use of an overhead projector or demonstrative aids, or to plant a well-selected impeachment chapter in order to avoid a monotonous litany of “testimony” from defense counsel.
VI. Conclusion
Employment law is an area of the law that changes dramatically from year to year. Million dollar-plus verdicts continue to gather enormous publicity, leading to the filing of more and more cases. This being the case, defense counsel’s trial strategies cannot remain stagnant. What has worked in the past now has the potential of backfiring, especially in the area of cross examination. The control method is a cutting edge method of cross examination, and, in the words of Berg, is “more aikido than judo.” As such, it is ideally suited to employment trials. Those who defend employment cases stand to benefit from its use.22
Footnotes
1 Member, Seyferth Knittig & Blumenthal, L.L.C., Kansas City. Mr. Seyferth represents management in labor and employment matters throughout the United States.
2 David Berg, The Trial Lawyer, 26 Litigation 6 (Spring 2000).
3 107 F. 3d 568 (8th Cir. 1997).
4 Id. at 578.
5 See, e.g., Ortrie D. Smith, Essay from the Bench: Lawyer Performance from the Jury’s Perspective, 63 UMKC L.Rev. 185 (1999). Juries simply do not appreciate an overbearing defense lawyer. Id. at 188-89. In Judge Smith’s words, “it is harder to say ‘no’ to someone you like.” Id. at 193.
6 Larry S. Pozner & Roger J. Dodd, Cross Examination: Science and Techniques (1993).
7 Pozner at 41.
8 Id. at 35
9 Id.
10 Id.
11 In employment trials, several factors are paramount in determining which type of theory of the case defense counsel will pursue, and thus, the recurring themes of the cross examination questions. These are, by necessity, case by case decisions that will depend on the specifics of the case at hand. Nevertheless, several recurrent issues will bear on defense counsel’s theory of the issues. First, defense counsel’s theory must comport with “common sense.” Most juries decide cases on the basis of their common sense, and the less one’s theory is consistent with common sense, the more likely the jury will be unpersuaded. Second, defense counsel’s theory must, if justified by the evidence, lead to a “fair” result. Because most jurors have been employed before, they will have expectations that the employer treated the employee fairly, not simply that the employer treated the employee legally. A theory of the case that first makes sense, and then strikes jurors as fundamentally fair, is a compelling theory of the case. Third, defense counsel’s theory must be articulated in such a way as to place responsibility for the adverse employment decision on both the plaintiff and the defendant. Put another way, it is not enough to “point the finger” at the plaintiff and demonstrate, for example, a job performance failure: the employer needs to also emphasize its role in responsibly and properly carrying out its (fair) policies, giving the employee notice of those policies, and giving the employee, where appropriate, a chance to correct her performance. For more discussion of this topic, see, e.g., Paul D. Seyferth, Efficiently and Effectively Defending Employment Discrimination Cases, 63 Am. Jur. Trials 127, 178-180 (1997).
12 Pozner at 187.
13 Id.
14 Id. at 41.
15 Id.
16 Id.
17 For further discussion of the role of the “employee paper trail” in employment litigation, see 63 Am. Jur. Trials at 160.
18 Pozner at 279.
19 Id. at 451.
20 Id. at 278.
21 Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder 229 (1996).
22 Berg at 6.