Cross examination isn't the toughest part of being a trial lawyer. My father used to say, "Your mother's cat could do a decent cross. The test of a good lawyer is a good direct examination." But a good direct is invisible. Cross is where the glory is -- once in a while.
All trial lawyers have cross examination war stories. The ones where you screwed up royally and lost the case. The ones where you hammered and hammered and hammered and got nowhere and the witness sneered at you. The ones where you did an unflashy, professional job and got somewhere.
And finally, the very few, where it all goes right, where the courtroom gives a collective gasp, the jurors look at you and all but high five you, and choruses of cherubim break into spontaneous song. Here's a story of one of those.
QUESTION (by prosecutor, on direct): "Dr. Know-It-All, could you please describe your professional education for the jury?"
The jury started to snooze. They were old enough hands after two days of trial to know that establishing the expert's qualifications wasn't likely to be interesting.
They were wrong. My heart was pounding so hard I thought I might faint. My hands were shaking. I clenched my toes.
ANSWER: "Well, I earned a Bachelor of Science degree from Columbia University and an M.D. from SUNY" and blah blah endless blah ad infinitum.
QUESTION: "Doctor, were you asked to review the case of Mr. Alleged Sexually Violent Predator?"
ANSWER: "Yes, I was."
DEFENSE (ME) (jumping to my feet): "Your Honor, I'd like to voir dire the witness as to his qualifications." (You remember the scene from My Cousin Vinny, where the prosecutor voir dires Mona Lisa Vito about her automotive expertise).
NEWLY APPOINTED JUDGE (suppressing a yawn): "Go ahead, counsel."
ME (talking like a hamster on meth): Doctor, you just said that you took your M.D. at SUNY. In the past, haven't you claimed that you took your M.D. at Columbia, where you got your [aptly named] B. S.?
ANSWER (grandfatherly chuckle): No, no.
ME: "But here on your resume, exhibit 4667, it says M.D., Columbia University, 1972."
ANSWER (another chuckle): "Oh, that's a typo."
ME (puzzled): "You testified last year, didn't you, in a case defended by my (public defender) office?
ANSWER: "Yes, I did."
ME (whipping out transcript) "On oath? In the Matter of M.N.? On June 5, 2000?"
ANSWER (helpful but puzzled): "Yes."
ME: "Your Honor, may we approach the bench?"
The judge and lawyers went into our huddle, and I hissed, "I'd like to ask that the Court advise the witness of his right to remain silent. We believe that he's committing perjury. He testified last year that he took his M.D. at Columbia. Here's the transcript and we've got it on videotape, too."
The judge was wide awake now. He'd been a respected criminal defense lawyer. "Wow!" he said. "I've never seen this happen before! This is, like, the most exciting voir dire into expert qualifications EVER!"
The prosecutor, a not terribly imaginative guy, turned to the back of the courtroom. His supervisor had happened to drop by and was back there flashing signals like a disco light show. "Uh, Your Honor, could we, uh, take a recess?"
We took the recess, sent the jury out, and reconvened without them. With Dr. Know-It-All still on the stand, we showed the videotape of him testifying that he got his M.D. at Columbia. The judge and the prosecutors (there were six of them there by then) were agog. The judge INSTRUCTED THE WITNESS on his right to remain silent and asked if he wanted counsel. He said no (with another grandfatherly chuckle). The prosecutors withdrew him as a witness.
We still lost the case, BTW, but that wasn't a big surprise. To their great credit, the prosecutors eventually obtained a false statements conviction against the witness.
There's a lesson to this. Prepare, prepare, prepare -- when you have the time. We knew the expert was sketchy -- his stories were just a little too good. It took weeks to find this stuff out, but what a payoff.