Litigation 101 Cross Examination

Cross-examining on state-of-mind issues

Written by: Thomas A. Downie August 1, 2021 Read Time: 2 min

This post is part of a series. Here is the full series list:

This is the fourth post in Cross Examination Series One.  Cross-examination in the Simon trial delves into the difficult issue of state of mind.  Reasons, intentions, motivations, understandings.

State of mind is difficult to prove or disprove.  Usually no direct evidence exists, apart from the parties’ conflicting testimony.  One useful approach is to contrast the witness’s ostensible reasons with what she actually did at the time.  You’re setting up a “reasonable person” standard.  What would the witness reasonably or logically do if she had the ostensible understanding?

The excerpt below is from my continued cross-examination of the professor in the Simon trial.  One disputed issue involved the reason for the parties’ falling out.  We wanted Mr. Simon to seem reasonable in the court’s eyes, and the professor not so.

At one point, the professor’s testimony began to depart from what might have seemed logical under the circumstances.  Notice that I led her further along that path.  The objective was to make her testimony seem as implausible as possible.


Q       You knew that these documents [the memoirs and diaries] were highly personal to Mr. Simon and his family?

A        Yes.

Q       As you said in your grant proposal, they were, at least in part, his story, and certainly the story of his parents?

A        Yes.

Q       Mr. Simon could not read German very well, and he couldn’t read the German shorthand at all.  Is that what you understood to be the case?

A        That is what I understood to be the case, yes.

Q       So he didn’t know the content of his mother’s diaries?

A        Neither did I.

Q       He didn’t know the content of his mother’s diaries?

A        No.

[That was “tweaking,” per Chicago federal public defender Terry MacCarthy.  More about that in later posts.]

Q       So, for Mr. Simon, who’s never been able to read his mother’s diaries, learning the content of those diaries would depend upon finding somebody —

A        Yes.  Yes.

Q       — who could transcribe them?

A        Yes.

Q       And reading the transcriptions?

A        Yes.

Q       So, he was vitally interested in seeing the transcriptions?

A        Not correct.

[I paused there momentarily.]

Q       In fact, it’s been your position in this case that he didn’t even want to know what was in the documents, isn’t that right?

A        That’s the impression I got.

Q       He never asked what was in the diaries?

A        He never did.

Q       In fact, it’s your position that there never was an agreement that you would send him transcriptions?

A        That’s right.

Q       Then would you turn, please, to Exhibit 15.  This is the January 1998 letter from you to Michael?

A        Yes.

Q       It’s the letter you referred to as the “birthday letter”?

A        Right.  It says “Our best wishes for your birthday!”

Q       You say in the letter that you’re translating the diaries — you’ve enclosed the entries leading up to his birthday — and then you say, “You can see what a special baby you were in your mother’s eyes, and in everybody’s.  You’ll also find out that your very first shoes were red and what birthday presents you got.”  You wrote this to Michael Simon in January of 1998.

A        Um-hum.

Q       You were writing this to someone you thought had no interest in learning the content of his mother’s diaries?  Is that what you’re saying in this case?

A        I’m sorry, from all Michael’s behavior, I got the impression that he did not really want to see these things yet.  This is my effort to get him interested in it, to get him involved.

Q       You claim it was not part of your original agreement that you would give him transcriptions, or even keep him informed?

A        It was never discussed.  I did it on my own.

Q       And yet Exhibit 21—the written agreement you had drafted by your lawyer and proposed to Mr. Simon—would obligate you to keep him informed, correct?

A        Yes.

Q       Now, your meetings with Mr. Simon, as you’ve testified, were in January 1996, and there was a second meeting later in the winter?

A        Yes.

Q       Do you still have Plaintiff’s Exhibit A there?

A        Yes.  The letter from Michael on March 4th.

Q       According to your testimony, it had never been discussed in the conversations of January 1996 and after that you would keep him informed about the project.  Yet on March 4, a few weeks later, Michael is writing to you that he was excited to receive your report about the recent developments.

A        Right.  And I did that on my own.  It was a natural thing for me to communicate with him whatever I found out about the progress of the project.  It was not something that I thought needed to be formalized.

Q       Would you go then to Defendant’s Exhibit 6 in the black binder.  I realize you testified about most of these documents in your direct testimony, but I’d like to examine them in a different light.  Mr. Simon was excited in March 1996 because he’d received a report from you.  Then in August 1996, he wrote to you asking, “How’s the project coming along?  Could you send me copies of this, that, and the other thing?”

A        Um-hum.

Q       In other words, his very next writing continued to express interest in reports from you?

A        Correct.

Q       And in providing you with information?

A        What information?

Q       Well, in your direct examination, you testified that Mr. Simon from time to time sent you lists of videos?

A        Yes.

Q       And provided you with information about people in Germany?

A        Yes.

Q       Provided you with other sorts of information?

A        Yes.

Q       Acting for all the world as though this was, in his mind, a joint project you were engaged in?

A        Yes.

The letters between the parties revealed a growing divergence.  Mr. Simon saw the professor as increasingly reluctant to provide him with information.  Was he correct in that perception?  It wasn’t necessary for us to prove that.  We simply wanted to show that he was reasonable in his concern.  I now returned to the main issue in the case, whether the parties had entered into a legally binding agreement.

About The Author

I’ve litigated class actions and other complex cases for many years, roughly divided between plaintiffs’ practice and defense representation. My undergraduate degree is from Penn State University and I earned my law degree, cum laude, from Cleveland-Marshall College of Law. In my senior year I was elected Editor-in-Chief of the Cleveland State Law Review.