The Cross Whisperer By Miles Cooper

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As printed in Plaintiff Magazine, February 2012

Today, a horseman teaches us about cross-examination. Some time ago, I took a course on communication that focused on horses. I’m not a horse person, nor do I aim to be one. So why horses, one might ask? As I learned, horses are herd animals, prone to flight when startled. They look to you as a leader and notice changes in your energy instantaneously. Perfect feedback mechanisms. For one exercise, we were asked to go into a ring with the horse and while staying on the ground, get the horse to walk and then canter around the outer edge of the ring in one direction, stop, turn, and then do the same in the other. Our only tools were a halter with a rope, a stick and ourselves. We had ten minutes for the evolution.

It sounds easy, but horses will only do what you ask them if you make your intentions clear. Several people went through the exercise with varying degrees of success. Then another participant walked into the ring. In the space of less than three minutes, he and his horse completed the tasks effortlessly. He looked up at the instructor, who said, “What do you want to do? You have another 7 minutes if you want them.”

Apply pressure

Let’s leave the ring for a moment and talk about pressure. Cross-examination and pressure run hand-in-hand. Applying it, releasing it and being aware that you are under it. Applying it is straightforward. A witness, like a horse, needs clear communication to know what you want the witness to do. This is done by applying pressure. You need to apply pressure right off the bat to demonstrate the desired direction. That you are the leader. And that you two are going down a particular path of questioning. The easiest way to do this? Start with very short leading questions on matters the witness can’t dispute. By way of example, assume you are examining the defendant’s person most knowledgeable.

“You’re employed by Defendant Company.” Wait for the yes.

“You’ve worked for Defendant Company 35 years.” Yes again.

You’ve started the endeavor, clearly communicated that you want yes/no answers and begun developing a bias theme. Be aware that too much pressure, call it heat, anger, or a heavy hand, can be disastrous. With a horse, it may cause it to bolt. A witness can do the same thing. The result may startle the jury and cause them to identify with the poor witness you are abusing rather than you. My former boss, an excellent trial lawyer, used to say, “Don’t start hating ‘em until the jury hates ‘em.” It takes a while for that pot to boil. If you come in hot before the jury dislikes the witness, you risk losing the jury for the examination and the rest of the case.

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