Everything I’ve ever read and heard about trial preparation, including cross-examination, points to preparation as the single most important element of success. I know that strategy has always served me best. But what about the role of spontaneity? Surely, it’s not for new or uninitiated trial lawyers. But a recent post at The Velvet Hammer, in which Karen Koehler, an experienced trial lawyer, describes her experience cross-examining an expert at trial, highlights spontaneity as a crucial part of her strategy. She says:
“Us lawyers spend a lot of time preparing for cross, thinking about cross, going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect. But here is the truth. There is no one perfect way to do cross that works on all expert witnesses. There is no magic bullet that will work every time. Did I read his report in advance – yes. Did I read a few depositions he had given before yes (thanks Ben Wells). Did I make some notes – yes. Do I know the chapter approach – yes. Do I know the rules approach – yes. Have I gone to reptile – yes.
But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn. Being able to be in the moment. Not focusing on obscure minutiae. Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible. This is what is needed in cross. At least for me.” (Emphasis added.)
In Cross-Examination: The Mosaic Art, John Nicholas Iannuzzi discusses this intersection between preparation and spontaneity. He says:
“[A]s you cross-examine on your feet, even if you have a full-blown cross-examination script in hand, you are not hide-bound by that script, but are continually revising and adjusting the cross-examination to accommodate the twists and turns that inevitably arise as the witness twists and turns to elude the thrusts of your questions. Therefore, that capacity and flexibility to improvise and formulate cross-examination quickly, while on your feet, is the same capacity which permits you to formulate your attack well, quickly, and professionally, despite the shortness of preparation time.” (p.127)
The key element here would seem to be confidence. Solid preparation builds confidence. This also holds true when taking depositions. If I am for some reason ill prepared, I remain glued to whatever outline I’ve created. When extremely well prepared, I feel far more comfortable drifting from my script, comforted by the knowledge it is available for me to retreat to, if necessary.
It would seem, then, that preparation and spontaneity do not play equal roles, since spontaneity thrives on preparation. For most of us (who are not Robin Williams) the converse is probably not true.