Rude and Pushy
Do lawyers need to have certain personality traits to succeed? Do they have to be rude and pushy? I hope not, but this week in Trial Law, one girl’s politeness completely sabotaged her cross-exam. I’ve known this girl for two years now, and I can tell you that she’s a genuinely kind and gentle person. The trouble is, she couldn’t shake that kindness or gentleness when conducting her cross.
She was playing a defense attorney in a mugging case in which the victim claimed that she got a good look at the accused (my classmate’s client) in the parking lot in which the mugging occurred.
The thing is, the mugging occured at night, and there were no lights in the parking lot. On cross, my classmate needed to get the victim to admit this much.
“You say you got a good look at the man who mugged you?” my classmate asked.
“I got a real good look at him,” the girl playing the witness answered. “I could see him just fine.”
“But didn’t you say it was eleven at night when all this happened?”
“Yeah, but I could see him just fine because there was a light.”
“There was a light in the parking lot?”
“There was a street lamp across the street. It was real bright.”
“Yes, but were there any lights in the parking lot?”
“I’m telling you, I could see the guy just fine.”
“But there were no lights in the parking lot—right?”
“I’m telling you, this street lamp across the street was HUGE. I could see the guy perfectly fine.”
“Okay, moving on . . .”
On cross exam, you have to control the witness. You have to make the witness your bitch. Here, the witness was making the lawyer her bitch.
My classmate needed to put this witness in her place. “Answer the question, yes or no,” she needed to say. “Are you having trouble understanding the question?” she needed to ask. “What part of ‘Were there any lights in the parking lot?’ don’t you understand?” she needed to ask, and she needed to ask it sarcastically.
You have to make the witness’s refusal to answer questions clear to the jury. Juries don’t like evasive witnesses.
And if a witness makes a speech on cross-exam, you’re supposed to say, “Judge, I ask that the volunteered portion of the testimony be stricken from the record.” If the witness does it a second time, you’re supposed to say, “Judge, would you please admonish the witness to answer the question?” And then, if the witness continues making speeches or avoiding the question, the judge can hold the witness in contempt of court.
The thing is, my classmate isn’t just gentle and kind—she’s smart. We went over admonishing witnesses last week, and I saw her taking notes. She knew what she was supposed to do. She must have been too scared to do it. Or maybe she was just too damn ‘kind’–of course, if this were a real case, I don’t think my classmate’s client would have thought she was ‘kind.’
Technorati Tags: Lawyers, Pushy, Rude, Witness Stand, Cross-Exam, Cross-Examination, Defense Attorney
Posted in Classroom Observations | 
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February 2nd, 2007 at 12:39 am
I can sort of relate to this - but my guess is, if your classmate wants to win cases, and loses a few due to “kindness” - she’ll overcome it soon enough. Did anyone suggest this need for more assertiveness while it was going on, or after? I’m curious how she reacted.
February 2nd, 2007 at 2:18 am
this… makes me wish i were in law school. just a tiny bit.
February 2nd, 2007 at 2:42 am
Counselor Linda,
No, nobody suggested that. The professor should have, for sure. She’s so sweet…maybe he just didn’t want to hurt her feelings.
-Rick Lax
February 2nd, 2007 at 2:17 pm
I think your friend’s problem is that she got into law for the wrong reasons. She is most likely a sufferer of the same syndrome that 99% of people you will find in law school experience, as well as 98% of all people in America. The problem is that the media makes being a lawyer look so fun and cool that all kinds of jerks and wusses think they’re up for it. I actually majored in polysci with the expectation of becoming a lawyer, until I realized that unless you are a fake one, being a lawyer sucks.
Until shows like “The Practice” and “Ally McBeal” are completely forgotten, you will likely keep running into all kinds of posers. Give ‘em hell for me, Laxy.
February 2nd, 2007 at 5:27 pm
I feel compelled to question the validity of Ryan’s statistics (humorous intentions aside). It seems presumptuous to claim that this girl is in law school for the wrong reasons just because she is too gentle and sweet to administer an effective cross-examination. So much of the legal profession, as Ricki’s dad can attest, takes place OUTSIDE the courtroom. One need not be aggressive or sharp-tongued to succeed. As for posers, there may be some who have altered perceptions of how fun and cool it is to be a lawyer based on portrayals in sitcoms or dramas, but I doubt those people constitute 99% of law students, let alone 98% of the American populace. As a sidenote, assuming Ryan’s suggestion that legal TV shows create posers was sincere, there are others who are drawn to the profession by the conflicts and legal solutions in those shows, and not the sexy characters or soap-opera storylines. It is also unlikely TV shows about law will be forgotten anytime soon. There’s a very good reason the television and film industry perpetually produces courtroom dramas, comedies, etc… because they involve high stakes and lots of conflict–the grist of the storyteller’s mill! “The Practice” and “Ally McBeal” are hardly original and are by no means aberrational. They’re offspring of LA Law. And what about the longevity of “Law and Order” or the political appeal of “Boston Legal,” which demonstrate how the legal arena can be (in)effective, insightful and inspiring. At the least, these shows may spark the interest of someone to pursue a legal career for good reasons–to cure social ills, protect the poor, defend civil liberties, etc. Some people may be posers, but I think it unfair, impertinent, and pretentious to accuse this girl to be one merely because she gave an amiable cross-examination.
February 3rd, 2007 at 1:43 am
I think you have been unfair to this lawyer in training. Every lawyer must develop their own style. For some the pushy overbearing approach may not work. If this lady looked and sounded like Reese Witherspoon there is is no way she will ever be able to intimidate the witness on a cross. For her the most effective approach may be to play the sweet diminutive blond who doesn’t have a mean bone in her body
and is just having a chat. You never know, with a smile or a wink the witness could get the wrong vibe and may even believe that she has a “special interest” in him. At that point she may even get him to confess that he shot Abe Lincoln.
February 3rd, 2007 at 10:37 am
Elliot, I object! Based on the grounds that you spelled Ricky’s name “Ricki.” It’s immasculating, man! What are you trying to prove? But I agree with you that Rian is way off.
As far as the girl goes, I have a different take. I think she was just nervous. You know she knew the protocol, Ricky; perhaps the reason she was unable to dig in was that she was too tense to think straight. She probably thought the whole room was evaluating her performance. Obviously you were. Yes, trial lawyers need to perform for a crowd, and she needs to work up to that ability, I grant you. But was it her nice-ness or her nervousness that cost her a successful cross this time?
February 4th, 2007 at 11:04 am
Elliot, I hope you are not a lawyer because you are WRONG.
‘nuf said.
February 5th, 2007 at 12:57 pm
Ryan, objection - you are wrong.
Yuri - you are wrong.
Chuck - you are wrong.
Elliot - you are wrong.
& to introduce an actual fact to this flimsy “discussion”, you should know it’s been thoroughly researched and proven that 87.3% of statistics are made up on the spot.
P.S. Rob - there is a 98.5% chance you are wrong too.
February 5th, 2007 at 1:15 pm
When I did my first interview of a patient when I was in social work school, my supervisor noted that I hadn’t asked very many questions. I replied that I didn’t want to get too personal. My supervisor reminded me that I was in training to be a therapist/counselor/confidante:
DUH. It comes with time. If she’s as smart as you think, she’ll figure it out. As you say, winning is more fun.
February 5th, 2007 at 1:46 pm
You can be nice about a cross, so long as you are persistent and thinking a few steps ahead. ie.: the lights were clear in the parking lot but you saw him very clealry? so what color scarf was he wearing; what was the type of car nearest to him, etc…? - Your freind could have made a fool out of this witness, and kept smiling sweetly while she did it !!!
February 5th, 2007 at 11:07 pm
Alex - I don’t have much knowledge of law, those questions may hold up as legitimate in a courtroom. With a background in cognitive psychology, however, I can say that whether or not the witness is able to answer questions about nearby cars may not be a reliable indicator of the witness’ ability to identify the suspect.
The questions could still be useful as probing techniques to see how confidently the witness responds, listening for signs of dishonesty in their tone. If they confidently answer “I don’t remember what cars were around, I was too distracted looking at the suspect and the crime at hand” - it seems like a legitimate out.
Simply forcing them into a yes/no question may elicit the optimal response.
February 6th, 2007 at 1:51 am
To answer your question, Ryan, no I am not a lawyer (yet). But I do think it would be fun and cool.
February 6th, 2007 at 11:21 am
Although the masses who base most of their informaion on television may think that all great trial lawyers must be rude and pushy, it is really quite the opposite. Witness: Louis Nizer.
February 7th, 2007 at 1:24 am
Barrister, thank you for the delightful and insightful reference. As Nizer said, “A graceful taunt is worth a thousand insults.”
February 8th, 2007 at 9:13 pm
Do we need to lose courtesy? As an 1L who is new to this, I notice that most law students spend time insulting each other. Is this suppose to make us better lawyers?
February 15th, 2007 at 2:42 am
I don’t think Insulting each other is supposed to make us better lawyers. I think it’s a nasty habit that excessively argumentative folks, like law students, tend to develop (or already possess). However, ad hominem arguments, if utilized with proper subtlety in a courtroom, can be very effective.