LEGAL GUIDE
Written by attorney Roy Lee Comer | Apr 11, 2011

Five Methods of Cross Examination: CLIPS

FIVE METHODS OF CROSS-EXAMINATION: CLIPS [1]

Roy L. Comer, Esq.

Every witness can be cross-examined on one or more of the following areas:

C redibility,

L ack of knowledge,

I mplausible statements,

P rior inconsistent statement, or

S upports your case.

The first letters of these five areas spells out the acronym CLIPS.

Every witness is vulnerable, at least to some extent, to one of these approaches.

1.CREDIBILITY

Every exaggeration, every lapse of memory, even the slightest tint of bias affects the credibility of the witness. One need not illicit devastating admissions from the stand; one need only obtain the concession that the testimony is shaped, to some degree, on a desire to help opposing party or the produce of a faulty memory.

2.LACK OF KNOWLEDGE

The direct examination of the opposing side’s witness is offered to prove a fact; only problem for them, the witness could not have known what s/he claims to have known and testified to.

Cross-examination that illustrates the opponent’s witness has to “jump into the head" of someone else to determine motive can undermine the jury’s confidence in that testimony. If the facts show that the witness was not in a position to observe behavior, or read documents, or hear conversations, etc., bringing this out on cross-examination undermines the credibility of that witness and, in turn, your opponent’s case.

3.IMPLAUSIBLE STATEMENTS

The direct examination of the opposing side’s witness revealing even one statement that defies common sense can be “the straw that breaks the camel’s back" of the case. Just as you are scrupulously diligent to keep these kind of comments out of your witnesses’ mouths, listening carefully to opposing witness’ comments and showing on cross what the jury already knows … the witness is making stuff up … could undermine the entire case of your opponent.

4.PRIOR INCONSISTENT STATEMENTS

Evidence Code Section 1235 states, “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770."

Thus, statements made prior to trial—at what other time would any statement be made that could potentially help you?—that are inconsistent with what s/he offers at trial is useful to undermine that witness’ testimony and show that s/he is lying. Any witness willing to lie about that relatively unimportant information is likely to lie about really important stuff, so you can’t trust him/her at all—or so the argument in closing argument goes.

5.SUPPORT YOUR CASE

Everyday consumers are more likely to believe a concession of superiority about a competitor’s product than any boast about their own brand. For instance, Coke admission that Pepsi is “better" in any way will be more likely believed than Pepsi’s own advertising about that so-called advantage.

By application, cross-examination of your opponent’s witnesses may develop small, but nonetheless helpful, concessions that advance your case.

For example, the opponent’s doctor may concede that the treating doctor is equally qualified to give opinions about causation. Or, the plaintiff may concede that there were no skid marks left by either vehicle, diminishing the potential speed of the vehicles at impact.

Of course, there may be other areas to explore on cross-examination. The examples are endless, limited only by your creative discovery methods and your logical mind.

[1] This article liberally borrows from Read, D. Shane, Winning At Trial(NITA 2007) and probably contains ideas from of the Resources listed herein, too numerous to mention.

Additional resources provided by the author

RESOURCES COMER’S LIST OF ADDITIONAL RESOURCES • Ball, David Ball on Damages, The Essential Update, (NITA) • Ball & Keenan, Reptile (Trial Guides) • Bergman, Trial Advocacy in a Nutshell (Thomson/West) • Cotchett, California Courtroom Evidence, (LexisNexis) • Fine, The How-To-Win Trial Manual (5th Ed. Juris Publishing) • Friedman & Malone, Rules of the Road, (Trial Guides) • Friedman, Polarizing the Case (Trial Guides) • Gitchel, Trial Advocacy Basics (NITA) • Hegland, Trial and Clinical Skills in a Nutshell (Thomson/West) • Hermann, The Curmudgeon’s Guide to Practicing Law, (ABA) • Imwinkelried & Leach, California Evidentiary Foundations (Lexis/Nexis) • Jeans, Litigation-3 Volumes (Michie Co.) • Judicial Council of California Civil Jury Instructions (Thomson) • Lisnek, Courtroom Power (PESI Law Publications) • Lubet, Modern Trial Advocacy (2nd Ed., NITA) • Lubet, Expert Testimony (NITA) • Lucas & McCoy, The Winning Edge (Lawyers & Judges Publishing) • MacCarthy on Cross Examination (ABA) • Mauet, Trial Techniques (5th Ed. Aspen Law Publishers) • McElhaney, McElhaney’s Litigation (ABA) • McElhaney, McElhaney’s Trial Notebook (ABA) • Morrill, Trial Diplomacy (Court Practice Institute) • Perdue, Who Will Speak for the Victim (State Bar of Texas) • Read, D. Shane, Winning at Trial (NITA) • Sandler & Archibald, Model Witness Examinations (2d. Ed., ABA) • Stern, Trying Cases to Win Series (Wiley Law Publications) ENCYCLOPEDIC REFERENCES • California Practice Guide, Civil Trials and Evidence, (Thomson) • California Practice Guide, Civil Procedure Before Trial, (Thomson)

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