|
Common Sense Rules of Advocacy for Lawyers
Rule 82 Don't Ask the Fatal Final
Question
| Rule 82 Don't Ask the Fatal Final
Question |
Take the following old chestnut as an
example:
You've testified my client bit off
the end of the victim's nose?
Yes, I have.
And this was in the bar of Jake's Diner. Right?
Yeah.
It's a long bar, isn't it?
I suppose so.
Forty feet, or more?
If you say so.
And it's got very dim lighting, hasn't it?
You could say that, yeah.
You were at the entrance end of the bar, weren't you?
Yeah.
And the fight took place at the other end didn't it?
Yeah.
Over thirty feet way from you, right?
Yeah.
And the bar was crowded, wasn't it? Twenty or thirty people
between you and the fight?
Yeah, about that number, I suppose.
How's he doing, this cross-examiner?
Has he shown the factfinder that this witness's testimony is less than
reliable? Dreadful lighting, obscured view, considerable distance from
the event. Great so far. Listen, while he totally screws up.
So, how come you say my client bit
that guy's nose off?
After he did it, he left the bar, and as he walked by me, I saw
him spit it out!
That's what's meant by a Fatal Final
Question. It's fatal because it loses cases. It should be called the
Foolish Fatal Final Question, because that's what it invariably
is. It's a question asked in disregard of all the other rules. It's
always unnecessary and it is almost always introduced by the forbidden
words, How? or Why? It's a question that gets asked because the lawyer
can't resist trying to end up with a flourish, because he can't
resist ending up his cross-examination with a "There! Get out of that
if you can!" And the witness gets out.
Don't do it. Don't go in for flourishes. Don't try to underline and
emphasize the testimony. Don't ever give an adverse witness the chance
to explain anything, unless you are positive what his explanation is
going to be. Never ask, Why? or How? Get what you want, then stop.
Never ask a question to which you don't know the answer. The Fatal
Final Question is always the abuse of half-a-dozen rules rolled into
one.
Now that we know exactly what we're looking at, let's have another
illustration. They always make great after-dinner stories,
particularly if they've happened to somebody else and not you.
This one happened in England, in a magistrates' court--the equivalent
of a municipal court here. The advocate who screwed up is now a
well-known high court judge, which proves we can all make mistakes
until we've learned not to. It was in an old English market town in
the dead of night. Two burglars, so the prosecutor said, were trying
to break into a jeweler's store. The police sergeant who was the main
witness testified he had come up to within ten feet of these guys and
watched what they were doing before arresting them. No one, said the
defense, could have got so close without being heard. It
couldn't be true--it was unbelievable. The cross-examination of the
police officer was designed to show this, and the defending advocate
did a good job of it.
Sergeant, would you be good enough
to tell us how tall you are?
Six feet three inches, sir.
And no weakling! Would you mind telling us your weight?
Tip the scales at just under twenty-three stone, sir. (over 300
pounds)
That night, wearing uniform, were you?
Yes, sir.
Helmet?
Yes, sir.
Greatcoat?
Tunic, actually, sir.
Boots?
Yes, sir.
Regulation issue boots, Sergeant?
Yes, sir.
What size were they?
Size twelve, sir.
Yes, I see. Size twelve boots. Studded with hobnails, were they,
like the normal regulation issues?
(Pause . . .) Yes, sir.
They had a kind of small horseshoe of metal on each heel?
Er, yes, sir.
And you say you approached within ten feet of these men without
their seeming to notice your arrival, Sergeant?
(Pause . . .) Yes, sir.
Nobody else around was there?
No, sir.
Normal flagged pavements were there (British for sidewalk)?
Yes, sir.
I mean, you didn't approach over a lawn or grass of some kind,
did you?
(Pause . . .) No, sir.
Enough? Time to sit down? Useful
cross-examination well-conducted? Get what you want, then stop? One
question too many coming up:
Well, really, Sergeant, can you
suggest to the court how you
could possibly have got as close to the defendants as you say
you did without being heard?
I was on my bicycle, sir.
Common Sense Rules of
Advocacy for Lawyers
By Keith Evans
$35
Plus shipping and handling (6% of order, $7.95 minimum).
Ships within 1 business
day
Hardbound: 264 pages
ISBN 10: 1587330059
ISBN 13: 978-1-58733-005-6
LCCN: 2003113147
OCLC: 56315474
Published 2004
Dimensions: 7.25 x 7.8 x
0.8
Weight: 1.2 pounds
Discount for bookstores and classroom use.
VA sales tax added when shipped to VA address.
Publication descriptions and Order form (10-page pdf)
Also see
URLs:
www.TheCapitol.Net/Publications/commonsenseSampSecRule82.html
www.RulesOfAdvocacy.com
Last updated:
May 07, 2008
|
