Litigation 101 Cross Examination
Focusing on claims and elements
Written by: Thomas A. Downie July 1, 2021 Read Time: 1 min
Focusing on claims and elements
This post is part of a series. Here is the full series list:
- An introduction to cross-examination
- Short questions, small steps
- Focusing on claims and elements
- Cross-examining on state-of-mind issues
- Contract claims and material terms
This is the third post in Cross Examination Series One. Cross-examination in the Simon trial now turns to the professor’s traditional contract claim—the allegation that she and Mr. Simon actually entered into an agreement. Typical business contracts are readily provable. Meetings occur, drafts are exchanged, final versions are signed. Situations like the Simon case bring us back to basic principles of contract law. Offer, acceptance, “words of agreement.”
As before, notice the “short questions, small steps” pattern of the examination, and the continued focus on elements of proof. Whenever possible, weave the actual words of the elements into your questions.
BY MR. DOWNIE:
Q You’ve never had a written agreement with Mr. Simon, correct?
A Correct.
Q In fact, you’ve had no formal agreement at all with Mr. Simon?
A If by formal you mean written, that’s correct.
Q In your discussions with Mr. Simon, you never used words like the lawyers used in your complaint—that you were given ‘the right to copy, transcribe, write, edit, annotate, excerpt, and publish.’ That’s a lawyer’s formulation, is it not?
A Yes.
Q When you met with Mr. Simon, you never said to each other, “now, we’re going to enter into a contract and these are going to be the terms.” You never used words of agreement like that, did you?
A No.
Q I would ask you, please, to look at Exhibit 20.
A Yes.
Q Exhibit 20 is the cover letter dated June 25, 1998 from you to Mr. Simon?
A That’s right.
Q Giving him the proposed written agreement that you had had drafted by your lawyer, correct?
A That’s correct.
Q What you said in your cover letter was that “it,” meaning the proposed written contract, “essentially puts in writing what we initially assumed from each other in conversations.”
A That’s right.
Q So, as you viewed the situation in June, 1998, you had had conversations. Those were the ‘important conversations’ you referred to earlier, when you’d met with Michael —
A In January and February of 1996? Right.
Q Now you were trying to put in writing not only the important conversations of 1996, but all subsequent conversations as well.
A I see. Okay.
Q Could you turn to Exhibit 21 please? The first two pages of Exhibit 21 are the copy of your proposed written agreement, marked up by Mr. Simon and returned to you, correct?
A Right.
Q And the second two pages of Exhibit 21 represent the agreement unmarked up, the agreement you sent to him with your cover letter of June 25?
A That’s right.
Q So, if we allow a few days for mailing, Mr. Simon penned his rejection, correct?
A Yes.
Q And you didn’t wait a long time for his rejection. He rejected it immediately, virtually immediately?
A Fairly soon afterwards, yes.
By this point in the cross-examination, focusing on elements had allowed me to undermine the contract claim in two ways. First, the oral discussions had not been contractual in nature —the parties had not exchanged “words of agreement.” Second, a written contract had been proposed, but was immediately rejected.
The next post will deal with a recurring challenge—cross-examining a witness on state-of-mind.
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.