Litigation 101 Cross Examination
Short questions, small steps
Written by: Thomas A. Downie May 1, 2021 Read Time: 4 min
Short questions, small steps
This post is part of a series. Here is the full series list:
“Short questions, then listen to the response.” The advice given me by a criminal defense lawyer. See the first post in this Cross Examination Series. This is the second.
Short questions help you to move logically from point to point, progressing through the facts. Everyone in the room will feel the rhythm of your questions and be drawn by the direction. Ideally every question will elicit a “yes” answer. When the witness balks, your short question will leave the disagreement narrowly defined—a simple question of fact. The judge and jury will answer it ‘yes’ in their minds, even if the witness denies it.
The excerpts in this series are from a civil trial. The appellate opinion is Tewarson v. Simon, 141 Ohio App. 3d 103, 750 N.E.2d 176 (2001). Our client, Michael Simon, was the youngest living survivor of the Holocaust. His parents left memoirs and diaries, which they wrote before and during the war. Mr. Simon arranged with a professor to translate them into English, but became dissatisfied and withdrew from the project. The professor sued, alleging an agreement authorizing her to publish a book that would incorporate the translated works.
You’ll need to know the basic factual sequence, which was not disputed. Mr. Simon’s mother had written her diaries in an archaic German shorthand. A gentleman in Germany, Mr. Gebhardt, transcribed them into German, and the professor then translated them into English.
Watch for the short questions, as well as my labeling of topics as we moved from one to another.
BY MR. DOWNIE:
Q Professor, let me cover some basic definitions. The memoirs were authored by Fritz Simon, Michael’s father, you understand that to be true?
A Yes.
Q And those are in German?
A That’s right.
Q The diaries were authored by Minni Simon, Michael’s mother, you understand that to be true?
A Yes.
Q And the diaries are in a special German shorthand?
A Right.
Q Now, you could translate the German memoirs into English, true?
A Yes.
Q But you couldn’t transcribe the diaries. Those were in German shorthand, and you couldn’t read them. True?
A No.
THE COURT: Well, is that a true statement?
THE WITNESS: Yes, it’s a true statement. I couldn’t.
DOWNIE: Thank you, Your Honor.
BY MR. DOWNIE:
Q So Mr. Gebhardt did the transcriptions of the diaries — you covered that in your direct testimony. You got his name from the Leo Baeck Institute?
A That’s right.
Q But, in fact, Mr. Simon told you about the Leo Baeck Institute. He’d learned of some people — one in Grand Rapids, Michigan, one in Germany — who could do these transcriptions. True?
A No.
Q Michael Simon never mentioned to you that he’d been in contact with Leo Baeck Institute?
A He mentioned, no. He mentioned somebody in Michigan, but when I talked to Frank Mecklenburg, he said they would not be able … They showed the shorthand to someone at the Leo Baeck Institute and they suggested Mr. Gebhardt — that I get in touch with Mr. Gebhardt.
Q Now, I think we’ve established that transcribing the German shorthand required special knowledge that you did not have. And as for translating from German to English — you are not unique as a translator, there are many people qualified to do that. You would agree with that, would you not?
A I would agree with that, but my job was not just translating, it was annotating and putting the whole thing into context.
Q Now, just to quickly cover this so we can move past it — the cost of the Gebhardt transcriptions, the total cost was five or six thousand dollars, correct?
A Yeah.
Q And you had total additional costs of between fifteen-hundred and two thousand for purchases of books?
A No.
Q You did not have such costs?
A I had — the transcriptions cost about $6,000. Then I had two thousand from the Memorial Foundation.
Q I’m sorry, I wasn’t asking you about the funds you received — I was asking you about the costs you expended. The transcriptions were …
A I can only tell the cost by the grants I had.
THE COURT: Didn’t you get bills for these things? I mean, how hard is this?
THE WITNESS: Yes, but all I did was submit them to the college and they paid them, so I never had the money in my hand.
THE COURT: Well, how much are the transcripts, the transcriptions?
THE WITNESS: About $6,000.
THE COURT: Did you submit any other bills?
THE WITNESS: Yes, I submitted bills for books.
THE COURT: And how much were those?
THE WITNESS: I, you know …
THE COURT: Folks, is this hard stuff? Isn’t there somewhere where there’s an accounting office that has this?
DOWNIE: Your Honor, as I believe I will establish in a minute, the witness’s recollection of this is a bit better than she’s now indicating.
THE COURT: Continue.
BY MR. DOWNIE:
Q We’ve covered the cost of the transcriptions. We agree it was five or six thousand dollars, correct?
A Six, over six thousand.
Q You purchased some books, true?
A Right. Right.
Q The cost of that was between fifteen-hundred and two thousand. You said so in your deposition, didn’t you?
A I understood …
Q Let me show you this page of your deposition. Weren’t you asked “How much did you spend on books in total”?
A Yes.
Q And what was your answer?
A Between fifteen-hundred and two thousand.
Q Thank you.
A I misunderstood. I’m sorry.
Q And you’ve had grant monies to you in excess of $57,000. In fact, a total of $61,000? Is that correct?
A Approximately.
I’ll pause here to point out some aspects of the cross-examination.
Labeling topics
I began the cross-examination with, “Professor, let me cover some basic definitions.” Introductory statements—labels, we could call them—structure the testimony and help the judge and jury to follow it. If you do it benignly—that is, not using the labels to argue your case—you generally won’t draw objections. A later example in the excerpt was, “Now, just to quickly cover this so we can move past it — the cost of the Gebhardt transcriptions …”
Patience and persistence
Persistence is important, but so is patience. In the excerpt, the witness was evasive—she knew more than she wanted to admit. Eventually the court became impatient with her (and with me). I explained to the court what was happening and that I’d soon clear it up. It worked out well in that instance.
Focusing on elements
You’ll want to build your cross-examination around the “elements” of claims. I use the term loosely—it includes anything that will help you achieve a favorable result. In the Simon case, we needed to disprove the professor’s contract claims. That included an “unjust enrichment” claim—the notion that the professor had so changed her position in reliance on the arrangement with Mr. Simon that it would be inequitable not to enforce it. The court of appeals later said that “unjust enrichment … was not raised before the trial court.” But I was certainly mindful of it in the cross-examination. The professor had taken some steps in furtherance of the project. From a monetary standpoint, though, she’d gained far more in grant money than she’d expended on the project. Also, she admitted that her own contribution to the project—translating writings from German to English—was “not unique,” that “there are many people qualified to do that.” Regardless of the precise legal import of those points, they helped to sway the outcome of the case in Mr. Simon’s favor.
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.