July 20, 2019

Archives for November 8, 2012

The Next Generation of Cross-Examination: Constructive Cross-Examination

This article is excerpted from the book, Cross-Examination: Science and Techniques, by Larry Pozner and Roger Dodd.

For generations, the cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case. Under the newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically, according to Roger Dodd, a national expert on cross-examination techniques.

Constructive cross-examination is a quantum shift from the historical outlook on the central purpose of cross-examination. It is not a technique, rather it is a new perspective on the ability to use cross-examination at trial to teach the cross-examiner’s theory of the case.

The old way: Destructive cross-examination

Historically, cross-examination was a series of techniques designed to challenge the witness’ testimony, including attacks on the witness’ credibility. The primary goal of destructive cross-examination was to attack the witness or the witness’ story whenever and wherever feasible. It was essentially negative or destructive in its outlook. For generations, trial lawyers were schooled in this outlook. The operable phrase was “to attack.” The cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case.

Consequently, the tone of destructive cross-examination was aggressive and negative. The courtroom climate generated by this form of cross-examination was tense. By the end of the cross-examination, someone was going to be damaged, whether it was the witness or the cross-examiner.

Under the former generation of cross-examination, the cross-examiner consciously or unconsciously believed that the critical goal of teaching her theory of the case to the fact finder would be left to her direct examinations. This most critical goal of trial was specifically reserved for direct examination of the cross-examiner’s own witnesses.

What is constructive cross-examination?

Under this newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically: use opposing witnesses to build the cross-examiner’s theory of the case. While the cross-examiner can still challenge opposing witnesses and their story, thus damaging the opponent’s theory of the case, this goal becomes secondary under constructive cross-examination.

This exponential expansion of the function and purpose of cross-examination rewards the cross-examiner with broader, more productive cross-examinations that are at the same time easier and less stressful.

Historically, the lawyer ready to cross examine would ask herself one fundamental question: “Does this particular witness hurt my theory of the case?” If the answer was no, the correct technique was often, “Ask no questions.” Under this new, modern theory of constructive cross-examination, the lawyer must expand her internal inquiry and ask herself two fundamental questions.

The first question remains the same, “Does this particular witness hurt my theory of the case?” Whether the answer is yes or no, a second, more important, question is asked: “Does this witness possess facts that I, the cross-examiner, can use to build, support, or strengthen my theory of the case?” So much more can be accomplished by asking the second question. Cross-examination becomes an opportunity to introduce, support, and reinforce the cross-examiner’s theory of the case. Even when a witness’ testimony presents few or no good areas for attack, the cross-examiner can still search for areas in which the hostile witness can be questioned so as to bring out facts supporting the cross-examiner’s theory of the case. Therefore, the likelihood of asking no questions of the witness on cross-examination has all but been eliminated.

If the answer to both questions asked at the end of direct examination is truly “no,” the cross-examiner may legitimately decline to cross examine. However, if the answer to both questions is “no,” the cross-examiner must ask herself why this witness was called by the opponent. What did the witness add to her opponent’s theory of the case?

To be clear, destructive cross-examination remains an available and necessary component of cross-examination. However, these attacks are now secondary in nature. Destructive cross examination is no longer the first and primary option of the cross-examiner. In every aspect of trial – from jury selection through opening statements, direct examinations, cross-examinations, and closing arguments – the trial advocate focuses on teaching her theory of the case to the fact finder. The aim from beginning to end is to educate the fact finder on that lawyer’s theory of the case. This singular focus provides fact finders the necessary facts upon which they can build an understanding that supports the lawyer’s theory of the case.

Larry Pozner and Roger Dodd together have revolutionized the practice of cross-examination in the United States. In addition to Cross Examination: Science and Techniques, they are the creators of the nationally acclaimed seminar “Advanced Cross-Examination Techniques.” They have lectured, appeared as expert witnesses, or conducted full-day CLE programs on cross-examination in 46 states as well as in Canada, Mexico and Puerto Rico.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.


CLE Program: Advanced Constructive Cross-Examination

This CLE presentation will take place on Thursday, November 29, at 9:00 a.m. Participants may attend live in our classroom or watch the live webcast.


Tenth Circuit: Phrase “Entered on the Criminal Docket” Means Judgment Must be Entered Publicly to Trigger Deadline to Appeal

The Tenth Circuit issued its opinion in United States v. Mendoza on Wednesday, November 7, 2012.

The Tenth Circuit determined whether a judgment was “entered on the criminal docket”  for purposes of Fed. R. App. P. 4(b)(6) if it is noted only on an internal district court document that is not publicly accessible.

Francisco Mendoza pled guilty to conspiring to distribute methamphetamine. The district court sentenced him to 135 months’ imprisonment and sealed the judgment. This filing was not noted or reflected on the docket sheet available to the public. The only evidence in the record that judgment was entered is a supplemental appendix filed by the government which contains a “Criminal Docket” titled “Internal Use Only.” Mendoza later filed a pro se notice of appeal. The government moved to dismiss the appeal as untimely.

A defendant choosing to appeal a criminal case must file a notice of appeal within fourteen days after “the entry of either the judgment or the order being appealed.” Fed. R. App. P. 4(b)(1)(A)(i). The deadline to appeal begins to run upon entry of judgment. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.

The government argues that judgment was “entered on the criminal docket” when the court filed a sealed judgment and noted this filing on a document titled “Criminal Docket . . . Internal Use Only.” Mendoza contends that judgment was never entered because the publicly available docket sheet contains no indication that a judgment has issued.

The Tenth Circuit concluded that the procedure followed in this case did not satisfy Rule 4(b)(6). Dockets and docket sheets have traditionally been considered public documents. Consistent with a centuries-long history of public access to dockets, the Court held that the phrase “entered on the criminal docket” contemplates public notation that judgment has been entered. Entry on a list of filings maintained for internal court use and inaccessible to the public did not qualify under the meaning of Rule 4(b)(6). Because judgment was never entered on Mendoza’s criminal docket, the Court rejected the government’s contention that his appeal was untimely. Nevertheless, the Court denied Mendoza’s substantive claim on the merits.

Government’s motion to dismiss the appeal DENIED and Mendoza’s sentence AFFIRMED.

Marla Prudek Appointed to Bench of Fourth Judicial District Court

On Wednesday, November 8, 2012, Governor Hickenlooper announced the appointment of Marla Prudek of Colorado Springs to the Fourth Judicial District Court bench, effective immediately.

Judge Prudek currently serves on the Fourth Judicial District County Court bench, where she hears civil, misdemeanor criminal, and traffic cases. She has been on the county court bench since 2009. Prior to her service as a judge, she was a partner at Gentry and Prudek, LLP,  in Colorado Springs, where she specialized in criminal defense.

Judge Prudek will fill a vacancy created by the retirement of Hon. Kirk Samelson, whose retirement was effective October 8, 2012.

A Different Perspective on “Drive-By” Lawsuits

I write to offer a very different perspective in response to “Colorado Businesses Beware – ADA Public Accommodation ‘Drive-By’ Lawsuits On The Rise.” It accuses two Florida lawyers of drumming up fake ADA lawsuits by investigating businesses, drafting boilerplate complaints, and soliciting Kristin McIntosh, a paraplegic who uses a wheelchair. Their claimed scheme: to extort fast, large sums of money from hapless business owners without changing accessibility for those who use wheelchairs. I write to counter the message that all accessibility lawsuits are “Drive-by’s.”

STOP! Full disclosure: Read my bio*. Colorado Cross-Disability Coalition’s (“CCDC”) Legal Program once represented Kristin McIntosh in a 2000 case alleging violations of the ADA. Also, I have used a motorized wheelchair for 26 years because of a spinal cord injury.

I am not writing to vouch for McIntosh or her lawyers. CCDC’s position is if the article and news story are correct, there are multiple ways they can and should be stopped because they do everyone a huge disservice. If they can’t prove their claims – not an easy feat in access cases – they lose; judges can – and have – sanctioned lawyers for bad conduct in access cases.

Before we tie every ADA lawsuit to so-called “Drive-By” lawyers, we need to understand there are multiple, real violations out there. The ADA was passed in 1990. Still, numerous businesses are out of compliance. CCDC has 2 current access cases: a 2009 case against Hollister Co. stores, and a 2010 case against El Diablo restaurant. Both owners refuse to admit they have violated the ADA, despite judges’ rulings in the Hollister and El Diablo cases that the owners created accessibility barriers that violate the ADA. They keep paying defense lawyers to fight, rather than fix, the barriers.

Here’s how access cases usually work: A person who uses a wheelchair runs into an access barrier at her grocery store. After talking to the store owner who does nothing, she contacts lawyers, all of whom charge $300 per hour to talk, which she can’t afford. Under the ADA’s public accommodations law, only injunctive relief is available, no money damages. Attorney fees are available, if the plaintiff wins. So she finds one lawyer willing to front the costs of a long, expensive legal battles with only the hope of a win and (maybe) fees 2 or 3 years later, but her current case load is too big to take it on. Many violations go unchecked.

Violations exist everywhere because businesses make the ‘business decision’ to wait to be sued before making changes. Many build things and don’t bother to comply. In my experience, demand letters do not work.

I find it troubling that settlement agreements reached are confidential, so we can’t know what happened. CCDC’s settlement agreements are available online. But one part of this story is overlooked: The business owner interviewed by Channel 7 entered an agreement and made her business accessible.

We don’t know the defense lawyer in that case, but he said, “These companies want to get into compliance. They want to make their properties accessible for handicapped individuals, but what they don’t want is to have extortion.” Suing and demanding money settlements in exchange for not having to comply is wrong and must be stopped. But why is any business not in compliance 22 years later? What are they waiting for?

We agree with the blogger on one thing: If a business really “wants to come into compliance” now, it should conduct an ADA-accessibility audit. There are many great tools available free on the Department of Justice’s ADA Home Page.

Kevin Williams is the Legal Program Director for the Colorado Cross-Disability Coalition (“CCDC”), a non-profit, disability rights membership organization. CCDC advocates for social justice for people with all types of disabilities. CCDC’s Legal Program practice consists almost exclusively of representing plaintiffs in ADA and other civil rights cases. On CCDC’s website, past case and current case information is available.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Defendant Needs No Knowledge of Distribution Capability of File Sharing Program He is Using to View Child Pornography for Sentence Enhancement to Apply

The Tenth Circuit issued its opinion in United States v. Ray on Tuesday, November 6, 2012.

In August 2011, Defendant Ray pleaded guilty to the knowing, intentional, and unlawful receipt of child pornography. In its presentence investigation report (PSR), the probation office assigned defendant, among other sentence enhancements, a two-level enhancement because defendant’s offense involved the distribution of child pornography. Defendant objected to the enhancement on the ground that the government had offered no evidence that defendant had distributed any child pornography or that any of the files downloaded had later been shared with another computer. Defendant further argued that even if such sharing had occurred, such sharing had been unintentional.

This appeal presents the question whether the district court could properly apply the two-level sentencing enhancement for the distribution of child pornography when the record indicated only that defendant used a peer-to-peer file-sharing software and that its sharing function was enabled, but not that defendant actually knew his software was capable of sharing files.

The Tenth Circuit held that § 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability of the program he is using to view child pornography. The Court noted it had repeatedly held that when the plain language of a guideline, in contrast to a criminal statute, does not include a mens rea element, the court should not interpret the guideline as containing such an element. The sentence enhancement was therefore properly applied.

The Tenth Circuit also rejected defendant’s claims that the district court unconstitutionally made findings for sentencing enhancements under a preponderance-of-the-evidence standard, that the court erred procedurally at sentencing, and that the sentence was substantively unreasonable. Accordingly, defendant’s sentence was AFFIRMED.

Tenth Circuit: Prisoner’s Application for Habeas Corpus Relief Denied Due to Untimeliness and Failure to Exhaust State Court Remedies

The Tenth Circuit issued its opinion in Prendergast v. Clements on Tuesday, November 6, 2012.

Brian Prendergast was convicted of securities fraud. He appealed his conviction and was sentenced to ten years of probation. In 2003, his conviction was affirmed on appeal. Prendergast violated the terms of his probation and was accordingly resentenced in 2009. His resentencing was affirmed on appeal in April 2011. In December 2011, Prendergast filed in federal district court an application for federal habeas relief. His application presented five claims. Two attacked the constitutionality of his resentencing. The other three attacked the basis of his original conviction. The district court dismissed the two claims related to the resentencing for failure to exhaust state-court remedies. The court dismissed as untimely the three claims related to the original conviction.

The Tenth Circuit reviewed these two bases for dismissal.

Exhaustion of State Court Remedies. For a federal court to consider a federal constitutional claim in an application for habeas, the claim must be “fairly presented to the state courts” in order to give state courts the “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Since there was nothing in Prendergast’s briefing to alert the state court about a federal constitutional claim, the district court correctly concluded Prendergast did not exhaust state-court remedies as to either claim.

Untimeliness. At the district court level, Prendergast presented three claims challenging the constitutionality of his 2003 conviction. Applying the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court concluded all three of these claims were time barred. Because AEDPA sets a one-year limitations period for filing a COA application, and because Prendergast did not raise claims attacking the original conviction until over seven years later, these claims clearly exceeded the one-year limitations period for filing a COA application.

Accordingly, Petitioner’s application for a certificate of appealability was DENIED, the matter was DISMISSED, and his motion to proceed in forma pauperis was DENIED.

Colorado Court of Appeals: Announcement Sheet, 11/8/12

The Colorado Court of Appeals issued eleven published and twelve unpublished opinions on Thursday, November 8, 2012.


People v. Ramos

People v. Rogers

People v. Pena-Rodriguez

Van Gundy v. Van Gundy

People in Interest of A.R., and Concerning F.N.

Health Grades, Inc. v. Boyer

Fifield v. Pitkin County Board of Commissioners

People v. Rockne

People in the Interest of D.S.

Marcellot v. Exempla, Inc.

Hall v. American Standard Insurance Company of Wisconsin

The summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.