Sid DeLong, Younger on Cross-Examination

Imagining Irving Younger 
Sidney W. DeLong

As a young lawyer doing civil litigation, I read everything I could find on cross-examination. Then I discovered Irving Younger’s magnificent lectures on trial practice and forsook all other authorities. Younger’s videotaped lectures on trial practice educated generations of trial lawyers and are still available on YouTube.

When after eleven years “at the bar” I became a Contracts professor and tried to tell my students what I knew about the practice of law, my background led me to emphasize litigation rather than transaction lawyering or contract drafting. I always told my students that for a litigator, cross-examination was the most fun they could have in the practice of law. (I’m not aware that transaction lawyering involves anything I would call “fun” until maybe a party after a big closing.)

Irving Younger’s most famous lecture is The Ten Commandments of Cross-Examination.Briefly summarized, they are: 

1. Be Brief..
2. Use plain, short words.

III.   Ask only leading questions.

1. Don’t ask a question you don’t know the answer to.
2. Listen to the answers.
3. Don’t quarrel with the witness.

VII.  Don’t let the witness repeat direct testimony.

VIII. Don’t allow the witness to explain or qualify an answer.

1. Don’t ask one question too many: Sit down!
2. Keep the jury in suspense until your summation.

My favorite classroom illustration of cross-examination was Holcomb v Hoffschneider297 N.W.2d 210 (Iowa 1980). Plaintiffs sought compensatory and punitive damages for fraudulent misrepresentation of the acreage in a residential lot. Sellers’ agent said that the irregularly-shaped parcel contained 6.6 acres whereas it actually contained only 4.6 acres. Admitting the misrepresentation, Sellers claimed that Buyers could not recover because they did not rely on it. The opinion contains extensive quotations from the trial transcript, making it an object lesson in cross-examination.

On direct examination, Buyers testified that they walked the property with Sellers’ agent:

1. Was the question of acreage of property that was for sale ever brought up?
2. Yes, before we made an offer to buy the property we stopped at [the agent’s] office and he gave us like a listing agreement and it showed the amount of acres. It showed 6.8 and this was on his original copy and before he Xeroxed it he says, “I don’t know, Jim, I guarantee at least 6.6 acres of ground here.” So I put a check by the 6.8 acres and put a question mark and wrote 6.6.

  He run a Xerox copy and we took it home and that’s what we made the offer to buy off of; that sheet of paper.

1. How many times prior to the closing of the transaction-how many times did the question of acreage come up?
2. Probably 10, 15 times at least.
3. Was it brought up by you or how?
4. By me because it just didn’t appear to me that there was that much ground there and he says we sell 90% of the acreages out here and Mr. Herzberg used to live in this house and there is a plat on our wall down in the office and I know that there is that much ground there. So, I took his word for it.
5. Did he make an explanation?
6. He said because it was pie shaped and that hills is deceiving because it is along from the one point to the top of the hill is a long ways. It does look, you know, the distance is deceiving of just how far it is.

  Now began the cross-examination, where the defense lawyer tried to establish that plaintiffs did not rely on the agent’s statements. The testimony quoted in the opinion shows that lawyer repeatedly violates Commandments III, VI, VII, and VIII by failing to restrict the witness to answers to leading questions and permitting the witness to explain and reiterate direct testimony.

1. And every time you asked Dean Olson he said about six acres.
2. No, he said, I guarantee at least 6.6.
3. And you asked him the same question 15 to 20 times and every time he said, I guarantee the size to be 6.8 acres.
4. He said Mr. Herzberg lived in here. There is a plat of this on our wall. And he said, no, if there was any difference they would catch it.
5. Why did you ask him 15 to 20 times?
6. Because it didn’t look like there was that much property there.

But these violations were not the biggest sins revealed by the transcript. The defense lawyer’s biggest mistake was a violation of Commandment V, a failure to listen to the witness and appreciate the statement that he had questioned the acreage “15 or 20 times.” The lawyer let the witness off the hook by asking him “Why did you ask him 15 or 20 times?”

This made me shudder. It reminds me of a jeweler who is given a bunch of stones to cut and fails to recognize that he has a jewel of infinite price, if only he cuts and polishes it correctly.

Imagine with me that after asking his last question, the defense lawyer had suddenly been removed from the game with an injury and the team had put in its backup lawyer, Irving Younger, to complete the cross-examination. The defense team is way behind because of the inept cross-examination, but there is still a chance for a skillful examiner to salvage a win. Because Younger would recognize that the “15 to 20 times” testimony, treated properly, will destroy the plaintiff’s claim of reliance.

Here is how I imagine that Younger would have completed the cross-examination:

1. You say you asked him about the acreage 15 to 20times?
2. Yes
3. That’s a gross exaggeration, isn’t it? Said loudly and desperately.
4. No, we asked him 15 to 20 times.
5. OK (said resignedly as if in defeat). Now, on a different subject you walked with him over the property and looked at it, right?
6. Right.

Q: And it looked to you like it was a lot less than six acres, right?

A: Right.

1. And that was after he had told it was 6 acres?

Right.

And you asked him the first of these 15 times and he said “I guarantee you it is six acres,” right?

Right

So you looked at it again. Right?

Right.

And it didn’t look like six acres, right?

Right

So you asked him a second time, “How big is it,” right?

Right

You asked him because it still didn’t look like six acres, right?

Right

And he told you for the second time, “It’s six acres.” Right?

Right

But you looked at it again and it didn’t look like six acres, right?

Right

So you asked him a third time how big it was, right?

I don’t know, but he said it a third time.

He said it a third time because you didn’t yet believe it, right?

Right

Because it still did not look like six acres, right?

Right

And after he said it a third time, you looked at it and you still weren’t sure, right?

Right.

Because even after he told you three times, it still didn’t look like six acres?

Right

I’m sorry, would you repeat your answer?

Right.

So he had to tell you it a fourth time, right?

Right.

But even after he had told you four times that the lot was 6 acres, you still needed persuading, right?

. . .

Right?

Right.

So he had to say how big it was a fifth time, right?

Right.

Etc etc.

I will spare the patient reader the next ten exchanges. But Irving Younger would not spare the jury because he wants them to get to the eye rolling stage and beyond.

Because then, after asking the first fourteen identically worded questions, he would ask the first question to which he did not already know the answer, a permissible violation of Commandment IV because he would not care what the answer is!.

Q: What was there about the fifteenth time he said six acres that made you believe him?

And then, regardless of the answer, as Younger commanded, he would sit down. At no time would he argue with the witness or demand justification or ask him about reliance or ask why he did not survey the property. He would reserve his argument about reliance for the closing, where he would argue one point:

“Remember this witness’s answers to my awkward series of questions. The buyers forced the agent to repeat himself fifteen times because they did not believe any of his fourteen repeated representations about the size of the plot. And if the buyers didn’t believe those statements, they sure didn’t rely on them.”

And that is how you polish a diamond!