Book Review: Your Witness

 Posted on June 26, 2008 in Uncategorized

Richard "Racehorse" Haynes is the only person I know who has a nickname for his nickname. He's "Racehorse" to the world and "Race" (or just "Richard") to the his "brothers and sisters of the bar".

I mention Richard because there are a very few lawyers - and Richard is one of them - whose tales a lawyer (no matter how smart, highly trained, talented, and experienced) will and should listen to for as long as they are around and willing to talk.

Then there are the rest of us. It will surprise no reader of this blog that trial lawyers love to talk about themselves. At any continuing legal education program you'll hear a string of war stories from the lectern, and more at the bar afterwards. Most of these stories are bearable in small doses. The bearability of the stories varies with the talent of the teller, the quality of the stories, and of course the quality of the Scotch.

Suppose that you gave a trial lawyer three hundred pages to fill. Chances are that she'd fill them with accounts showing her brilliance - most trial lawyers are driven by ego and the need to prove something to someone.

But the best war stories are those that didn't turn out well for the teller. We'd much rather hear someone tell about how he fought the good fight and got his butt kicked anyway, than hear about how he did everything right. If you were at the bar with another lawyer and he could talk about nothing but his own brilliance, you'd be making your excuses within minutes. It might make good marketing (maybe not), but it doesn't make good narrative. Three hundred pages of self-aggrandizement wouldn't make for a very good read.

Suppose, instead, that you gave fifty lawyers an average of six pages each, and asked them to write about a single topic, the most difficult trial advocacy skill: cross-examination. You'd wind up with bearable chunks of self-aggrandizement from those lawyers without the backbone for self-deprecation (and therefore for wisdom) as well as too-short chunks of wisdom from those lawyers without a weakness for self-aggrandizement. You'd have to try to strike a delicate balance because what is bearable bluster once or twice can quickly become too much.

And that pretty well describes "Your Witness: Lessons on Cross-Examination": an attempt to strike a delicate balance. A beautifully laid-out book with lots of white space, Your Witness is a collection of articles (50 of them) about cross-examination by "great Chicago trial lawyers". It's dedicated "To all those who enjoy a good courtroom story", and there are certainly enough good courtroom stories to make it worth the trial lawyer's time. There are also several stories that no amount of single-malt could possibly redeem.

Contrast this (the voice of R. Eugene Pincham from Chapter 4):

How to cross-examine? The basics are the same in every courtroom I have been in over the past 50 years.Well, first of all, you must recognize that law school and your law degree and your law license have made a fool of you. You begin to think that you're the smartest person in the courtroom - that's what your law license and your law degree do to you.....I have my wife come to court with me when I'm trying a case. I know that these big-time lawyers don't do that, but I ain't that big a time. Why? Because as a lawyer, you can't see everything. Even a law degree doesn't give you the ability to see behind yourself. My wife sits in the courtroom in an inconspicuous spot and she's the eyes in the back of my head, and I can tell you, I have won many a case because of something you saw or something she said to me about a juror that I didn't see. She will critique me when we recess, when we go out in the hall. She doesn't tell me how much she loves me because I know that already. Instead, she tells me how I am messing up.

To this (written by Robert W. Tarun, in chapter 6):

Cross-examination is the greatest challenge a trial lawyer faces. it is prepared for as if a science and performed as an art. Above all, cross-examination must serve one of two overriding trial objectives: either proving one's case and theory or weakening or disproving the case and theory of an opponent. If a cross-examination will not further one of these objectives, there is no need to take on the witness.....At this point I finally conceded to the judge that Fuller had been destroyed in the jury's eyes. It had happened because I was watching Fuller's body language and listening to his hurried staccato admissions during cross-examination. It was the result of thorough preparation - but probably more importantly, careful watching and listening.

Now, y'all know that I'm a big proponent of listening as a trial skill, but tell me: is there one of those two guys whom you'd like to hear more from, and another whose eye you're going to avoid catching when he walks into the bar?

There's something in the book for everyone: great tales from the real deal (including Terry MacCarthy), empty talk from former prosecutors (Scott Turow notes in the foreword that "Cross-examination, along with closing argument, is the high art of trial, and prosecutors, generally speaking are not experts") talking about the mummery that passes for cross-examination in cases in which nobody's freedom is at stake, lots of lawyers of all stripes bragging about their prowess, and a little bit of Chicago legal history.

For all my grousing about the asshattery in the book, I did read it straight through - both the gold and the dross had me craving more gold. And I often found gold in surprising places: the outstanding lesson of the book for me came from civil litigator Peter C. John's chapter 13, on "jury ego". Cross-examination can't be learned from a book, so the best a book can do is paint a picture in broad strokes of different issues and philosophies in cross-examination. This, Your Witness does admirably.

Windy Pundit asked last month about who to hire for a (hypothetical) criminal case in Chicago. In Your Witness many of the writers give glimpses of their personalities; it might be a good place for Windy to start. Who else is the book for? Trial lawyers who are willing to improve their craft - they will find enough nuggets of cross-examination wisdom to make the book worth the read - and anyone who enjoys hearing lawyers talk about themselves.

I'm afraid the second group is probably even smaller than the first.

(A publicist sent me a review copy of the book. Scott Greenfield and I are apparently on the same mailing list. And what blogger / trial lawyer can resist a free book? Here's his review.)

"Your Witness: Lessons on Cross-Examination" (Law Bulletin Publishing Company)