Law Book: Mastering the art and science of cross-examination

 Edward P. Ryan Jr., The Daily Record Newswire

“Excellence in Cross Examination”

By F. Lee Bailey and 

Kenneth J. Fishman

Thomson West, June 2013

838 pages; $150

 

“Excellence in Cross Examination,” by F. Lee Bailey and Massachusetts Superior Court Judge Kenneth J. Fishman, is without question a must-read for any lawyer seeking to be a master of trial advocacy. 

In any trial, testimonial evidence must be tested in what has been called the “crucible of cross examination.” Effective and successful cross-examinations must be thoroughly prepared. Witnesses must be investigated: the strengths and weaknesses of their powers of observation; their biases; their inability to see, hear or know what they claim; the existence of a predisposition to embellish or lie; and their interest in the outcome of the case all must be known in order to undermine or discredit their testimony.

Knowing when not to ask a question is the corollary to knowing what information is being sought from the witness and what questions will elicit precisely the information.

This book provides the roadmap for the development of the skills necessary to achieve those ends. It is a book that ought to be read and re-read before virtually any trial. It serves as the foundation for mastering the art of cross-examination and for sustaining the necessary skills throughout a career.

Not only does “Excellence” contain a treasure trove of actual cross-examinations from some of the nation’s most famous trials, the text also provides a wealth of information necessary for the success of any trial lawyer. Chapters on the science of memory, the rules of evidence, and the art of preparation for cross-examination provide the reader with an in-depth look at what could be termed as the essential “science” of cross-examination.

Unlike most legal texts, which tend to be a bit dry, Bailey and Fishman’s work is, in large part, written in the language of the street. Despite their strong plea for a high level of language usage, there is nothing that is pedantic in what the authors unfold. One does not need a graduate degree — or even an undergraduate degree — to be comfortable in reading and comprehending the many messages the pages have to offer.

Fishman’s view from the bench of the art of cross-examination is particularly enlightening. He shares insights based on his personal experience, as well as insights gleaned from his colleagues and jurors. Trial lawyers would do well to follow the basic rules that derive from his observations.

The largest segment of the book contains seven different cross-examinations from actual cases, annotated and footnoted to explain what the cross-examiner is attempting to accomplish with each question put to a witness. All make for instructive, often entertaining, and sometimes exciting reading.

Included is Roy Black’s stunning dismemberment of the prosecution’s star witness in the Florida rape trial of William Kennedy Smith; Elizabeth Mulvey’s slicing and dicing of two doctor-witnesses in a Boston medical-malpractice case; and Richard Sprague’s utter demolition of Alan Iverson’s primary accuser in a preliminary hearing in Philadelphia on a charge of assault with a weapon, so effective that the case ended then and there.

The remaining four examples pertain to cross-examinations conducted by Bailey himself: another medical-malpractice case, a contract dispute involving the testimony of the president of Raytheon Corp.; former Florida Gov. Claude Kirk in a securities fraud case in Orlando; and the dissection of Cleveland’s Cuyahoga County Coroner Samuel Gerber in the successful murder retrial of Dr. Sam Sheppard in 1966.

There is something in “Excellence” for all trial lawyers, from the novice to the accomplished practitioner. Perfecting the art of cross-examination is a skill best honed by experience. In the absence of a practice field for developing good trial skills, this book, by sharing the experience of the best lawyers in the country in most difficult cases, enables the reader to adapt the techniques employed in the illustrative cross-examinations to prepare and produce effective cross-examinations in virtually any trial.

It is a book that should be in every trial lawyer’s bag.

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