CROSS EXAMINATION CONTENT AND THE "POWER OF NOT"

• Published in: The Brief (Chicago. 1980) 2022-06, Vol.51 (4), p.52-59
• Main Author: Brayer, Patrick C
• Format: Article
• Language: English
• Subjects: Analysis; Attorneys; Cross-examination; Evaluation; Evidence; Laws, regulations and rules; Literature; Management; McMichael, Travis; Message framing; Methods; Negation (Logic); Power; Themes, motives; Trial preparation; Witnesses
• ISSN: 0273-0995; 2163-0178

Many trial attorneys can effectively identify issues in the discovery process but fail to communicate to the fact finder the power of the facts as they relate to the case.1 Depositions can be artfully conducted and interrogatories expertly administered, but if the presenter of the evidence is unable to translate basic facts into vivid images and stories, then once-dominant discovery revelations can often be reduced to tepid references.2 After years of preparing one case, many trial attorneys are so hardened to the basic facts that they fail to emphasize in cross the importance of obvious, yet highly influential, pieces of evidence.3 While observing one recent high-profile (and widely publicized) cross-examination, one legal analyst commented, "in fact, the lack of theme right now is a big question that myself and a lot of other people are thinking about because there hasn't been a specific overarching theme other than 'let's show everybody in America a bunch of embarrassing messages that are tasteless and wrong. Each time we consider this contrast, we linger on what a stop sign truly means, and we imprint a visual of the stop sign in our mind.10 Building small chapters11 or stories12 about what something or someone is not is a way to bring power to obvious facts, so they become consideration points for judges and talking points for jurors. The Power of Not is an easy way for the litigator to reengage the listener, call them to action, and provide them with an important visual to argue in a jury room or to consider in a judge's chambers. A Real-World Example On November 18, 2021, Linda Dunikoski, an experienced Georgia assistant district attorney and litigator, engaged in the cross of defendant Travis McMichael.14 Her stated goal was to convict McMichael for the murder of Ahmaud Arbery, an unarmed Black man who was gunned down while jogging in a predominantly white neighborhood just outside of Brunswick, Georgia.15 By many accounts, her cross of the defendant was highly effective and was streamed nationwide by media and online platforms.16 McMichael, along with two others, was convicted and received a sentence of life imprisonment without the possibility of parole.17 Relevant to this piece is how Dunikoski crafted her cross-examination questions to include a segment that demonstrated how McMichael "did not" see Arbery engage in any threatening acts.