In legal writing, plain English is good, and legalese is bad.

Many of us lawyers accept that

premise and apply it to briefs and memoranda. But often, we fail to apply it to pleadings. We
should cure that failing.

There are at least three reasons why we should plead in plain English. First, when we plead in
legalese, we erect a language barrier between ourselves and those whom we serve. By pleading
in plain English, we help break down that barrier.

Second, most judges prefer plain English to legalese. Most judges think that lawyers who use
legalese have less prestige, are less smart, and are ranked academically lower. Bryan A. Garner,
The Winning Brief, at 146 (1999). If you want your judge to think that youre one of the better
lawyers, use plain English.

Third, the Federal Rules of Civil Procedure and most state equivalents require plain English.
Rule 8(c)(1) requires pleadings to be simple, concise, and direct. An answer must state
defenses in short and plain terms. FRCP 8(b).

We should know the basic rules of good legal writing: Avoid needless repetition and wordiness.
Prefer active voice to passive voice. Use plain English instead of archaic lawyerisms. Lets apply
these rules along with Rule 8 to draft an answer for our fictional client Schmidlap.

The introduction.

The introduction of any pleading need only identify the nature of the pleading, the party who is
filing the pleading, and for an answer the pleading that it is in response to. The usually
introductory verbiage (Now into court, through undersigned counsel, comes . . . .)
accomplishes none of these purposes. And most judges dont like the Now comes opener.
They prefer a simpler, more direct style: Defendant Schmidlap answers the plaintiffs complaint
as follows.

Denials and admissions.

Too many answers contain several pages with one sentence mind-numbingly repeated over and
over: The allegations of paragraph [n] of the complaint are denied. Repeating the same
sentence dozens of times is no way to be concise.
Rule 8(b) provides a short, simple way to deny any number of allegations. We can deny
hundreds of paragraphs in a lengthy complaint with one sentence: Schmidlap denies all
allegations of the complaint except as otherwise admitted below. This single sentence
eliminates much needless repetition. And it lets us quit worrying about whether we accidently
admitted something by forgetting to deny it.

If for some reason you wish to specify the paragraphs of the complaint that you are denying,
theres no reason why you cant combine all your denials in one paragraph. The same goes for
admissions. Thus, Schmidlaps answer might contain these two paragraphs:

Schmidlap denies paragraphs 1, 3, 5, 7, and 11 through 127 of the complaint.

Schmidlap admits paragraphs 2, 4, and 6 of the complaint.
Notice that we are applying some basic principles of good writing. We are using the active voice,
saying Schmidlap denies rather than the allegations are denied. We are also avoiding
redundancy by shortening the allegations of paragraph 1 of the complaint to paragraph 1 of
the complaint. Finally, we are referring to Schmidlap by name rather than the procedural title
defendant. Most courts prefer this. See, e.g., Fed. R. App. P. 28(d).

Admitting in part and denying in part.

If a paragraph of a complaint is partly true, Rules 8(b) and 11 require you to admit the part that is
true. Just keep it short, concise, and direct. And use the deny-everything-except technique to
avoid lengthy denials. For example:

Schmidlap denies paragraph 8 of the complaint except to admit that he

sold a widget to Smith.

Pleading lack of knowledge.

The allegations of paragraph [n] are denied for lack of knowledge or sufficient information to
justify a belief therein is bad writing. Yet many of us who would never write like that in briefs
frequently do so in pleadings. Rule 8(b) requires the pleader who lacks knowledge to say so, and
that has the effect of a denial. To obey Rule 8(b), plead lack of knowledge like this:
Schmidlap lacks knowledge or information sufficient to form a belief whether paragraphs 8, 9,
and 10 of the complaint are true.

The concluding prayer.

Too many answers conclude like this: Wherefore, premises considered, defendant prays that
this answer be deemed good and sufficient, and that after all due proceedings are had herein . . .
. Twenty-two words saying absolutely nothing. If you wouldnt put such gobbledygook in a
brief, dont put it in a pleading either. Just tell the court, in simple, concise, and direct terms,
what you want it to do. For these reasons, Schmidlap prays that the Court dismiss Smiths
complaint at Smiths cost.

If you follow these rules, you will comply with Rule 8s requirement that your pleadings be
concise, simple, and direct. You will appease the judge, who will think you are smarter than your
opponent who continues to use legalese. And you will help break down the language barrier
between lawyers and the public.

Lawyers seem unable to master the art of cross-examination. I hold Wigmore responsible for this
failure by boldly proclaiming that: Cross examination is the greatest engine for ascertaining truth.
Perhaps in some alternate universe, but not this one. The engine works better in theory than
practice. This lawyer ineptitude explains why Irving Youngers lectures on cross-examination were
so popular in the 70s and 80s and lives on in videotape.

Younger makes cross-examination seem easy. Just follow his commandments and you will achieve
success. If only it were this easy.

Irving Younger was a great teacher. He is safely ensconced in the pantheon of great CLE speakers
along with Terry McCarthy. I had the good fortune of attending a live Younger lecture on trial
advocacy including the so-called ten commandments of cross-examination. Younger made the day
fun and had a wonderful collection of stories and illustrations for his points. He had to do it all orally
because this predated the great use of demonstrative evidence we take for granted today. But the
human voice is a great storyteller and he did a marvelous job without the crutches of video and
audio.

His hearsay lecture was first class but it was far surpassed in popularity by the ten commandments.
By now every law student and trial lawyer has watched a tape of these lectures and there has been
an entire body of trial literature written as commentaries on them. They are quoted ad nauseam by
trial lawyers too lazy to formulate their own ideas; they just accept it as a given. As a famous editor
once said when there is a conflict between the legend and the facts, print the legend.
One of the basic points I make with all my law students is to question everything and look for the
reason behind any rule. A lot of accepted wisdom in trial advocacy doesnt always work. Dont be
afraid to reject it if it doesnt work. Quoting a source is a lazy way of thinking.

Quite frankly I didnt think much of the commandments then and even less now though there are a
few kernels of truth in them. First, I doubt the efficacy of any scheme that fits so neatly into the
number ten allowing the biblical metaphor. It is too cute. But Younger probably figured that would
make them popula,r and he was right about that. Second, to break a commandment is a mortal sin.
The problem with calling them commandments is that they lose flexibility. Any of these so-called
commandments should be broken if the occasion calls for it. None of these rules are forged in steel.

Here are Youngers Ten Commandments of Cross-Examination:

1. Be brief
2. Use plain words
3. Ask only leading questions
4. Be prepared
5. Listen
6. Dont get into a quarrel
7. Avoid repetition
8. Disallow witness explanations
9. Limit questioning
10. Save the main point for the summation

Lets see if they hold up today:

1st Be brief

Brief keeps you safe but also denies you any rewards.

Younger makes the point that the jurors can only absorb a finite amount of information so an ideal
cross-examination should have no more than three points affecting the witness reliability. This is
ridiculous. Perhaps one can be brief if it involves a minor case with a short witness but it is otherwise
unworkable and bad advice. When the witness batters you and destroys your case what choice do
you have except to go to war?
The best example of brevity not working comes from Younger himself:

He represented the Washington Post when it was sued for libel by the president of the Mobil Oil
Corporation. The plaintiff called a trucking executive to the stand. The trucking executive gave
testimony helpful to the plaintiff. Youngers cross-examination consisted of four questions:

Q: Mr. Hoffman, did you just get into Washington just about an hour ago?
A: About an hour and a half, I would think.
Q: Did you come up from Florida?
A: No, I did not.
Q: Where did you come from?
A: Indianapolis.
Q: How did you get from Indianapolis to Washington?
A: On the Mobil corporate jet.

It was a hand grenade in the courtroom, Younger enthused, the kind of moment a trial lawyer
savors for the rest of his life. Okay, so the plaintiff had the witness flown on its private jet to testify.
This was one of the worlds richest corporations and no doubt this is how they did business,
especially when a witness was needed quickly. This was not a great benefit to the witness since he
probably didnt want to testify anyway. So the point is dubious but to make it the only impeachment
of a major witness? Bizarre at best.

The best evidence of why this is bad advice comes from his trial. The jury returned a substantial
plaintiffs verdict although Younger finally prevailed for his client in the court of appeals, although as I
recall Edward Bennett Williams did the oral argument.

My own experience shows this point doesnt work. I cross-examined a witness whose direct took
four days. Do you think I could quickly hit three points and sit down? Imagine a complex commercial
fraud case. The jury doesnt have to understand every point you make in the cross. You will take the
best points and illustrate them in the final argument. In fact, I continue to cross-examine until I get
enough to make my case in the argument. I once cross-examined an IRS case agent for five days
trying to squeeze out enough material to make my defense. It was slim pickings but it made a
difference.

The purpose of cross is to counter the impact of direct. You must make certain points no matter the
time involved. On the other hand if the examination is lengthy and tedious without any goal or at
least a goal the jury can see then it is self-defeating. Know your objectives is a better way to
phrase this. The trip will take time. You dont start with the conclusion you build up to it. You set
up the witness. Like cross on a police report. You need to lay a foundation how sacred the report is
in the police investigative files on the case. Without that the punch line is meaningless. The jury has
to understand the point.

Despite my complaints here is a cross of an expert I always wanted to use:

Q. Dr. Smith, you are being paid $800 an hour to testify here today?
A. Yes.
Q. Well then, I wont take another minute of your time.

2nd Short questions, using plain words

I agree wholeheartedly with this one, but it is not unique to Younger. Everyone who writes on cross-
examination suggests simplifying the questions. The idea is to cut out the unnecessary filler words
like adjectives and adverbs which elongate the question and allow witnesses to escape answering it
directly. They will quibble over the modifiers if your question is vague. So make it a simple plain
sentence that they have to confront. And cut out the unnecessary circumlocutions like vehicle
instead of car. Use words like you do in conversation, or as Terry McCarthy teaches like you would
in an Irish bar. There is nothing like short Anglo-Saxon words.

3rd Always ask leading questions

Once again hardly earthshattering advice albeit accurate. This is how the lawyer keeps control of the
witness. As I wrote in my book Blacks Law, cross-examination is a series of statements by the
lawyer occasionally answered with a yes by the witness. I dont pretend to be the inventor of this
basic idea and neither is Younger.

There are lawyers who believe that an open-ended question, a why question, can be appropriate at
times. The witness can appear evasive when failing to fully answer a question and thus not reliable.
Also some believe that insisting on a one-word answer from the witness which does not have a
natural one word answer will cause you to lose credibility with the jury. I still think that it is too
dangerous and not worth the risk. But it is open to debate in certain limited situations.

4th Do not ask a question to which you do not know the answer

Younger is repeating a long held but inaccurate cliche. It would certainly be nice if we knew every
fact of a case or every fact a witness knew, but we dont. Younger warns that if a lawyer does not
know the answer and there is any possible answer that could hurt the lawyers case, that is the
answer the lawyer will get. I agree that a little paranoia is good here but it cant rule the situation.

I specialize in federal criminal cases which allow very little discovery before trial. This is why the
federal government increasingly uses the criminal law to enforce its policies. You find out who the
witnesses are when they are called and you learn what they had to say when you hear it for the first
time from the witness stand. There is a premium on being able to stand up and launch into your
cross examination after hearing the direct, concentrating on what the witness said and then using
your wits, and get on with it. There will always be surprises and events or testimony you didnt
anticipate. According to Younger, federal criminal lawyers should forego cross-examination because
it is too dangerous.

While we dont know all the details, we do have an idea where the testimony will be traveling
although we wont know its exact course. It is common to find yourself in a situation where the
witness has raised an issue that if left unexplored will be an admission you have no answer for. The
best you can do is be as prepared as possible. Having read all the documents and investigated as
much of the witnesses backgrounds as possible then figuring out the best course of action.

Get every possible bit of information on the witnesses. Study their credentials, certifications,
correspondence, reports and websites, along with any other data related to the subject matter of the
case. Over-prepare allows you to anticipate most of the answers, even though you cant know
exactly what the answer will be. Often in blind cross-examination, you do not know the answer to the
question. But when you ask about the obvious, it does not matter what the answer is.

Ask low-risk questions that call for facts, rather than opinions. Only ask questions when you know
what the answer should be, based on logic, context and common sense. The easiest way to control
a witness is through the use of exhibits. Accordingly, use your documents to weave your testimony
on blind cross-examination.

Q. Did you write this document?

Q. When you wrote it was it true?
No witness will deny these questions. Then highlight the substance of the document and get the
witness own words in writing in evidence.

Q: You wrote this letter, didnt you?

A: Yes.
Q: And when you wrote that I know that you tried to accurately report all your income on this
transaction, you believed that to be a true statement, didnt you?

By reading the statement into the record, you are driving home its content. It doesnt matter what
the witness response is. What does matter is getting the witness own words in writing into
evidence.

The prevalence of e-mails has made this far simpler. Witnesses do not talk to each other, they e-
mail, and the best part is that they spontaneously write e-mails without hesitation and without
reflection on the consequences.

Documents tell the story at any trial. So go carefully through the documents, and lay them out like a
long mosaic and weave them back together as you tell your story.

Francis Wellman in the Art of Cross-Examination put it better than Younger when he wrote, A
lawyer should never ask a witness in cross-examination a question unless in the first place the
lawyer knows what the answer would be or in the second place didnt care.

5th Do not allow the witness to repeat his direct testimony

Younger advises that cross-examination is not an opportunity for a witness to emphasize and
strengthen his or her points. Good advice.

There is one example in the literature where asking the witness to repeat his direct was effective. In
the Triangle Shirtwaist Factory fire trial, Max Steuer, a famous New York criminal lawyer, destroyed
the credibility of Kate Alterman, one of the survivors, by asking her to repeat her story several times.
She used almost the same words each time allowing Steuer to argue to the jury that the witnesses
against his client had all memorized their testimony perhaps at the urging of the prosecutors.

Except for this once in a lifetime opportunity it is better not to attempt this.

6th Do not permit the witness to explain his answers

Younger says the examiner must prevent the witness from wandering from the direct question asked
and add damaging comments. Of course I would love to be able to do this, as all trial lawyers would.
Unfortunately Younger fails to allow for the third party involved in the examination the judge. As
soon as you try to cut off the witness who is demanding to explain the friendly judge always tells the
witness to answer the question first then explain. Gee, thanks for nothing.

The rule stipulates that the witness shall only answer the question asked, but judges rarely enforce
it. Some witnesses insist on repeating their side of the story no matter what you do. Clever
witnesses like experts and cops have an agenda and will take advantage of judges laxity to beat
you at your own game.

The classic advice is to ask the judge for help since the answer is non-responsive. Bad idea. This
sounds like whining and defeat. Instead embrace the fight. Let the witness refuse to answer simple
questions. Keep repeating the same question until you get an answer. Let the jury see how biased
they are. You will score more points with that approach than whining about the rules of evidence.
And any begrudging admissions you wrest from the witness will seem even more valuable since the
witness is so obviously hostile.

And you never know a witness may claim not to know what the meaning of is is.

7th Listen to the witness answers

Of course you are listening closely to the direct examination in order to use it on cross. But why
listen to the answers on cross? Arent they all mono-syllabic and just agreeing with you? See
commandments three, four and five. So there shouldnt be anything to listen for if you follow them.

8th Do not quarrel with the witness

Younger claims if you get into arguments with a witness, the jury will likely side with the witness. I
generally agree with the concept, but I would call it dont be a jerk. Tone down the sarcasm (hard to
do!). Dont lose your temper. Remember the aphorism: Those whom the gods wish to destroy first
make angry.

But also dont overlook the benefit of some conflict. The jury expects drama and conflict on cross.
They expect to see an epic battle between lawyer and witness. Dont disappoint them by losing it.

9th Do not ask the one question too many

Younger explains that this commandment is a corollary of his other commandments such as the
prohibition against asking questions before knowing the answer. However, he believes the damaging
impact of an unwise additional question is potentially severe enough to merit special mention.

The illustration Younger uses to make this point is well known to every lawyer. Abraham Lincoln was
defending a man charged with assault and battery and manages to get the witness to admit that he
never actually saw the defendant bite off the nose of the victim. However he then asked the fatal
question:

If you didnt see him bite off the nose of the victim, how do you know that he did?
Thats easy, the witness responds because I saw him spit it out.

This is a great story and it is repeated whenever this issue is discussed. There are two problems
with this story. First if Lincoln didnt ask the one question too many, dont you suppose the
prosecutor would on redirect? And when the prosecutor asks this question, it deflates your entire
cross and you also lose credibility.
Second is the rest of the story as Paul Harvey used to say. Lincoln wasnt blundering but was laying
a trap. He then asked the witness how he could see the event because it was night and he was
quite a ways from the fight. He answered: By the light of the full moon. This also appeared to be
one question too many but then Lincoln produced the 1857 Farmers Almanac which proved there
was no moon at all that night.

The real commandment should be know when to quit. Recognize the battle is over and you either
won or lost. Be in tune with what they jury is feeling about things. If you have won, there is no need
for overkill. Dont bring the dead back to life. On the other hand, if you have lost then have the
judgment to admit defeat and sit down.

10th Save the ultimate point of your cross for summation

He bases this concept on his belief that a juror who understands the points made on cross-
examination but does not grasp how they fit the lawyers case is likely to pay attention through the
rest of the trial to satisfy this curiosity. This seems a slim reed for such a commandment. While I
dont believe the cross examination should become a substitute for your final argument, it is a place
to reinforce your themes. We can make major points on cross examination. We can use questions to
tell our clients story. Questions that support your story.

It is rare to make a hidden point on cross examination that neither the witness nor your opponent
realizes. Only in the movies can the trial lawyer suddenly and with great drama reveal it for the first
time in final argument. Jurors form impressions and fix opinions as the trial progresses and they are
difficult to dislodge in final argument. So you need to persuade as the trial goes on. So make the
points you can when you confront the witness head on and you dont save anything for argument.
Cross examination is when the jury is listening carefully so take advantage of that fact.

A good example of this comes from my good friend Gerry Spence. Here is an excerpt from
Exposing the Hidden TruthCross-Examination, in Gerry Spence, Win Your Case 168-222 (New
York: St. Martins Press, 2005):

Cross-examination is simply storytelling in yet another form. Cross-examination is the method by

which we tell our story to the jury though the adverse witness and, in the process, test the validity of
the witnesss story against our own. [Spence, Win Your Case, at 169] [When the lawyer gets up to
cross-examine he should have a significant story in mind that he wants to tell with this
witness.][218] [Basic cross-examination is nothing more than a true-or-false test administered to
the witness, in the course of which our story, as it concerns that witness, is told, question by
question, to the witness. It makes little difference whether the witness answers yes or no. Question
by question, our story is being told. Its for the jury to determine whether the witness is telling the
truth when he denies the statements contained in our questions. If we took each statement out of our
cross-examination and joined them, we would have presented our story for that witness. Id. at 170]
[[B]efore we begin the cross-examination, we must have in mind the story we wish to tell through
this witness. We have prepared the story for each witness and well not muddle around asking a
bunch of meaningless questions in order to hear our own melodious voices, nor will we repeat the
questions we heard on direct examination, except where it is necessary as foundation for a well-
prepared cross. And, at last, we ask ourselves, do we want to cross-examine this witness at all? Id.
at 218-219
Quite frankly Gerrys writings and essays on trial advocacy are superior to Youngers. Gerry is more
nuanced and more user friendly.

So what conclusions can we draw from re-reading the Ten Commandments?

To start with, there are no panaceas. There are no rules which always guarantee success. There are
no commandments handed down from on high. Each trial takes on its own life, is tied up in its own
facts, and each witness is different. We humans dont fit nicely into categories. Keep your wits about
you and make the tactical decisions on the ground. There is a premium on the ability to think and
react quickly. Youngers general ideas give you a context to work from but specific rules which
always work dont exist.

As Julius Byron Levine noted:

No two trials are identical, even if they are both trials on possession of cocaine charges, or even if
one is a retrial of the other. The witnesses never testify identically, by word or demeanor. The
lawyers never phrase their questions identically. Whoever tries to argue this months trial with last
months summation will be as stale and unpersuasive as yesterdays coffee and toast.

Despite all this commentary I can tell you one rule that always works: One doesnt learn how to
cross-examine a witness by reading a paper or watching a lecture. The only way to learn cross is by
doing it. Practice, practice, practice. By conducting examinations. Mock or real.