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Thursday, July 8, 2010

Teaching Cross-Examination with a Trial Rhythm

I've been teaching cross-examination as a stand-alone module in my advocacy courses for the past several years by assigning students to prepare a cross-examination of a witness independent of any direct examination. My reasoning was that I wanted students to learn how to use case analysis and cross-examination to advance their own case theory; I wanted them to avoid the reactive cross-examination that occurs when an advocate writes or prepares her cross-examination during the opponent's direct examination. I felt that coupling direct and cross examination in one exercise presented too many difficulties for a basic trial advocacy course. In my advanced course, I have used exercises that pit students against each other with a direct and cross examination, but the students in these courses have already tried at least a couple of mock trials in the classroom environment and understand the different purposes of direct and cross.

A few students have complained that the cross-examination exercises I've used seem sterile. They feel it's difficult to get in the mood and mindset for cross-examination without a direct examination to set the stage for them. Some have even claimed it is misleading to call the exercise cross-examination--that it would be better called Examination by Leading Questions or something similar to that.

I experimented with something new (at least for me) to help teach cross-examination in my summer term advocacy class. I was pleased with the results and intend to use the same formula for my larger trial advocacy class during the regular school year.
My experiment wasn't revolutionary, but it did seem to make a difference for the students. Also--it helped me kill two birds with one stone by adding an impeachment by prior inconsistent statement element to the exercise.

Here's what I did.

As with past cross-examination exercises, I assigned the students to prepare a cross-examination of a witness from the case file. I also advised them, however, that I would conduct a direct examination of the witness that would include some facts inconsistent with the case file.

As an aside, I use two case files in class. Half the students prepare the advocate roles for Case File A and the witness roles for Case File B, and the other half prepare advocate roles for File B and witness roles for File A. I use an assignment table that lets them know what to do for each exercise. I also have an opposing counsel assigned to make objections as necessary (this will be the subject of another post).

At the beginning of class, I called up a student who was prepared to play the witness role for Case File A. I met with the student for a couple of minutes and provided some facts inconsistent with the case file. I then conducted a direct examination of the student/witness. The advocates for Case File A then conducted their cross-examinations. I did not leave the same witness up there for the entire time; the other witness students took their turns but were bound by the direct examination I had conducted as if they had been the witness.

Halfway through the class, we did the same thing for Case File B.

I think it worked well, for several reasons. First, the students got to conduct a cross in trial rhythm, immediately following a direct examination. Second, since they had no idea what the inconsistencies were going to be, they had to listen carefully to the direct to identify them and use them. Third, their advance preparation for the assignment ensured that their cross-examinations were planned, and not just reactive. Finally, the experience of cross-examining a witness who was being protected by opposing counsel was illuminating for many of them; I had one student who had not anticipated any objections and struggled through a cross-examination that was much more difficult than the one he had planned.

I'd be interested to get feedback on what I've done and find out what others are doing to effectively teach cross-examination skills.

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