Francis Karam, presently Of Counsel with Robbins Geller Rudman & Dowd LLP, is a trial lawyer will over 30 years of experience. He has represented investors, pension funds, and individuals in class actions and other large non-class action cases. In this interview, we discuss his book “The Truth Engine: Cross-Examination Outside the Box.” Learn more about his book here.
Lawyer Minds: What prompted you to write The Truth Engine?
Francis Karam: Ever since I did my first trial as an Assistant District Attorney in the Bronx, I have been interested in, and in fact, fascinated by cross-examination. It’s the hardest part of doing a trial because another person is directly facing you, trying to undo what you are trying to do. That is not true for openings, summations, direct examination, and, for the most part, jury selection.
So I read those books on the subject that I could find, beginning with Francis Wellman’s “The Art of Cross-Examination.” I also spent many years as a criminal defense lawyer whose main weapon in defending clients was cross-examination. I often taught at courses sponsored by the National Institute of Trial Advocacy, and from teaching cross-examination, I found that I had made extensive notes on the subject.
Some years later, I had a case in London. Our local counsel, a Barrister, took us to lunch at Lincoln’s Inn, one of the Inns of Court. After lunch, we went to the bookstore for the Inns of Court, and I was looking forward to buying some British books on the subject of cross-examination. But I was surprised to find that there were none, and the only book this distinguished British bookstore had on cross-examination was Wellman’s book. So, I thought that there might be a need for another book on cross-examination.
Lawyer Minds: How can focusing on the process of the trial distract from the truth?
Francis Karam: Lawyers are taught to engage in abstract logical thought. They are rewarded in law school examinations, the bar exam, and brief writing for engaging in the conceptual analysis of words and ideas. For analyzing facts but not for finding facts. They are also rewarded for following rules of legal writing and reasoning. In short, most lawyers can have a very successful career by focusing on the process without having to search for the actual truth. But in the real world, in trials involving human events, abstract conceptual thinking alone cannot solve the whole problem.
Of course, you have to be rational, but you have to be open to approaching things without necessarily using your logical brain. So, for example, you are a prosecutor, and you have information that an accused murderer has used the murder weapon for target practice in a wooded area. You want to find a bullet slug from the murder weapon. You go there, and first, you think logically: where would he take target practice? But that’s not enough. You have to walk around, look for footpaths, broken branches, and bullet holes in trees. Stop thinking and just observe. You have to engage in trial and error, which is deeply frowned upon in law school and legal briefing. It is a different type of thinking. This type of thinking is more useful in cross-examination, which is perceptual and fact-based, rather than conceptual and logic-based.
Lawyer Minds: How would you suggest lawyers look past their cognitive biases when first examining a case?
Francis Karam: Humans naturally understand the world through the lens of their established worldview. They resist changing that worldview even when confronted with facts that contradict it. This is known as cognitive dissonance. This concept is doubly true with trial lawyers who are highly competitive and whose livelihood and reputation depend on winning cases.
Lawyers are often more prone to misinterpreting or ignoring facts that go against winning their case. As lawyers mature, they often realize that a case looks best when you first meet the client but goes gradually downhill from there as you learn more facts. So when starting a case, it would be better not to ask, “how can I win this case?” but “how can I lose this case?”.
But the best way to avoid cognitive bias is to look at each fact one by one and try to be certain that it is actually true, that it is not slanted, and that you are weighing its importance properly. This is the process of growth as a trial lawyer. It also is a great way to prepare your cross-examination from the start of your case.
Lawyer Minds: How can a new trial attorney get used to using silence strategically during cross-examination?
Francis Karam: A few seconds of silence in a courtroom, as you stand in front of a judge and jury questioning witness, can seem like an eternity. The most common way to use silence for advantage is to pause for a few seconds after the witness gives an answer and take a breath. You would be surprised how much work your brain can do if you can relax and breathe for a few seconds. Your brain will be able to more thoroughly process the witness’s answer, and you will be able to do a better job of formulating a follow-up question.
Of course, a less frequent but more dramatic use of silence is when you have asked a line of questions that the witness resisted but eventually gave in and gave you the admission that you were seeking. Stopping and standing silently in front of the jury allows the drama of the moment to sink in.
Related to silence is restraint. Restraining yourself from asking too many questions, from bringing in topics that are not of central importance, and finishing your cross-examination before going on too long are also techniques that will increase the effectiveness of your cross-examination.
Lawyer Minds: Why is cross-examination most valuable at the “crisis” of a trial?
Francis Karam: I use the word crisis in its sense as a turning point of the trial. Cross-examination is literally dramatic. In plays and drama, the most important information is communicated to the audience through dialogue between two characters in conflict. The cross-examination of an important witness is the trial in microcosm. If the questioner can gain admissions from that witness, those facts have greater credibility to a jury because the lawyer can tell the jury that both sides have agreed to these facts. This relieves the jury of the burden of deciding who is telling the truth and makes their job easier. If the hostile witness will not admit true facts, the task of the cross-examiner is to undermine the credibility of that witness by showing those facts to be true. The witness must either admit true facts or sacrifice their credibility. Such cross-examinations very often decide the outcome of the trial.
Lawyer Minds: Do you find yourself favoring indirect cross-examination or confrontational cross-examination?
Francis Karam: A lawyer can accomplish more through indirect questioning than confrontational questioning. Creating indirect questions that strategically explore facts in a way that the witness would be willing to answer can be challenging but more rewarding. So, I spend most of my preparation time trying to figure out how to establish facts that, if asked directly, a witness might not answer but would be willing to answer if the questions were posed in an indirect way.
But the reality is that the indirect approach will not work every time. If a witness outright lies or denies a true fact, you have to be prepared to confront that witness with the evidence to impeach them. My goal is to try to minimize those situations and find a way to get the witness to admit the truth without being confrontational.
Lawyer Minds: Why is there such a strong physical component to cross-examination?
Francis Karam: Focus and concentration are physical processes. Although a human can focus while sitting at a desk or in front of a computer without a lot of physical engagement, focus and concentration become much more difficult when standing on your feet in a back and forth question and answer contest in front of a judge and jury. Physical engagement, body awareness, and control are far more essential in that situation. Just ask an actor about that.
Breath is the bridge between body and mind. Breathing and posture are within your conscious control, and by controlling these, you can also indirectly control your emotions and how fluidly and rapidly you think. I have found that regular exercise that concentrates on posture, breathing, strength, and body awareness, prepares me to be physically aware and engaged when I am in the courtroom and questioning a witness.
Lawyer Minds: If you had to sum up The Truth in just a few sentences and how it can help trial attorneys, what would you say?
Francis Karam: What I wanted to do in the book was to look for the elemental principles beneath cross-examination. Although the book has specific advice, more important is the exploration of the basic areas of knowledge behind and underneath cross-examination. The principles are: understanding truth; perceiving and weighing facts; creating a story from these facts; using strategy both in questioning and in story creation; using mind-body awareness to create fluid thinking in a stressful situation; and pursuing a spiral of learning in which you return to each of these principles after more experience. I want to give the reader of the book not instructions but ideas from which they can create their own cross-examinations in any possible case.
Lawyer Minds: What’s the best piece of advice you’d give to someone heading into their first cross-examination?
Francis Karam: Read Irving Younger’s “10 Commandments of Cross-Examination.” Breathe. Relax. Don’t try to do too much, and don’t expect to destroy the witness. Focus short questions, one fact at a time, on those few facts most important to your final argument. If you don’t get the answer you want, move on. When you get your answers, sit down.
Lawyer Minds would like to thank Frank for taking the time to talk about his book and share his insights with our readers!