Triers of the Lost Art? - Glassman and Zissimopulos | Injury - Car Accident - Criminal Defense

The numbers are shocking. Less than 10% of people charged with a crime go to trial as opposed to entering guilty pleas. Some estimates show that in Florida, the number of civil cases being resolved at trial are as low as 0.2% of all dispositions each year.

This poses a series of challenges for trial lawyers.

Primarily, how do lawyers refine the skills to actually try a case in front of a jury? In Gainesville, we are fortunate because there are several opportunities to sharpen those trial skills outside of an actual courtroom. For instance, for the last twelve years, I have been an adjunct instructor at University of Florida Levin College of Law. Dan Glassman has guest-lectured in similar courses that teach trial skills.

Just last night I worked with a group of students on one of my favorite jury trial skills – cross examination. There are several reasons to absolutely love cross examination. From an intellectual perspective, the basic right to confront an accuser or a hostile witness is right there in the Bill of Rights in the United States Constitution: “. . . the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .” As trial lawyers, we give real meaning to this fundamental right if we take it seriously and dedicate ourselves to doing it well.

To that end, I have thought a lot about cross examination. It may take a lifetime to truly master this skill, but the basics can be learned in just five minutes. A good cross examination has four parts, affectionately known as “the cross I’s”: Inconsistencies, Impairments, Interests, and Inclusion of your theme.

Inconsistencies

Has a witness said or done something that is different from their trial testimony? In Florida, jurors are told by judges during the final jury instructions that they can consider inconsistent statements by a witness and chose to disbelieve any witness based on inconsistencies (see http://bit.ly/2kNnCXE and http://bit.ly/2jMD4W5). A trial lawyer must be prepared to highlight such inconsistencies in order to discredit an opposing witness.

Impairments

Not every witness is completely qualified to testify. There are a variety of things that can impair a witness. Lack of experience, poor vantage points, physical limitations, and intoxication are just a few of the areas that affect witnesses. The movie My Cousin Vinny does a wonderful job of demonstrating this. As a trial lawyer, I am constantly looking at witnesses trying to determine if there are things that weaken their ability to tell their story and in turn affect their credibility.

Interests

All witnesses have bias. Florida courts have recognized that a “defendant should be afforded wide latitude to cross-examine in matters relevant to credibility, particularly in the demonstration of bias or possible motive on the part of a witness.” Hinojosa v. State, 857 So. 2d 308, 310 (Fla. 2d DCA 2003). Few witnesses take the stand without an agenda. A trial lawyer must spend time to find these biases and must effectively expose such interests through cross examination.

Good trial lawyers develop themes and theories of their case and find creative ways to communicate those to jurors. The theme is often the first thing a lawyer says in opening statement and the last thing they say in closing. Too many lawyers forget the theme throughout the trial. In the car accident cases, Glassman & Zissimopulos Law often uses a theme centered around safety. Dan Glassman and I are always looking for ways to reinforce that theme throughout the entire trial. A cross examination should include questions that mention the theme. This can be an effective way to get opposing witnesses to agree with your theme and the underlining theory of your case.

Obviously, this is the tip of the iceberg. Lawyers may not be in trial every day, but we have an obligation to develop these skills if we are going to represent people injured in accidents or accused of crimes. At Glassman & Zissimopulos Law we understand this responsibility and we are continually working to develop the skills we need to protect our clients.

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