E30 Cross Examination - With Larry Pozner - The Law Down Under Podcast

Episode Transcript
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Chris Patterson (00:00):
Hello and welcome to the Law Down Under podcast. I'm barrister Chris Patterson, and we will give you insights into the law in New Zealand and Australia, its application, and the law's future. Each episode features a new guest who will inspire interest in the law and give you a greater understanding of the legal issues that help shape our justice system here down under. We thank you for tuning in and hope you enjoy the podcast. This episode of the podcast deviates slightly from the theme, which usually focuses on the law here down under. As listeners will know, each of our guests are topic experts in the law affecting or shaping New Zealand and Australia. We're super excited to learn that Larry Posner will be in New Zealand to present his cross-examination workshop, and I didn't want to miss out on the opportunity of inviting him to join me on the podcast. Larry is not only the leading expert in the United States on cross-examination techniques, but he's also a world-renowned expert on the topic. We discuss his early career, his reasons for writing his book, and we also finish off by discussing some of the lessons he's learned over an illustrious career spanning over 50 years. I'm sure that you'll enjoy and learn a lot from listening to Larry share some of his stories and insights into the science and art of cross-examination. Joining me today on the Law Down Under podcast is Larry Posner. He is an American lawyer and an expert on the topic of cross-examination. I've had a number of guests join me who have written books, so it's not unusual in that aspect, but it is unusual to have someone who can truly say that they have changed the profession and the way in which the profession addresses a particular area of the law. In this case, the science and techniques associated with the art and science of cross-examination. Larry is the co-author of the book "Cross-Examination

Larry Posner (00:01):
Thank you for inviting me.

Okay, it is truly a pleasure to have you with us. Look, Larry, let's start off with the usual question that I ask many guests. And in your case, I do appreciate this as this is going back a couple of years now. What led you into the law? What was the motivator for you to find your way into law school?

Well, I knew from the age of 13 that I wanted to be a criminal defense lawyer. So it was always very clear to me. I'm not saying it was academically easy, I am saying it was emotionally easy. I knew I had to go to college because they require college to get into law school. And then I had to go to law school because they require a law degree to practice criminal defense. If I could have skipped those steps, I would have. And I'm not sure I got much out of those steps. It seemed to me I learned how to be a criminal defense lawyer after I graduated, not before. And then I became a public defender, which was my goal. And away we went.

Okay, so let's turn the clock back. This is going back to October 1973. A lot of the listeners probably weren't even born. I have to say even myself, I think I might have been six months old by that stage. But you're starting out with the Colorado Springs Public Defense Office. What was that experience like for you in the early '70s, defending people in Colorado Springs?

Well, I was not an odds-on favorite. I was hired by the state defender system. Colorado has a state system that assigns lawyers to offices throughout the state. And after I had been promised a job, they had taken me around to several offices for interviews. I was very impressed by how hard they were screening to see what office I should be in. What I didn't realize is the reason there were so many interviews is that every office turned me down and said, "He will never be a trial lawyer, we can spot that." The head of the public defender system made a deal with the Colorado Springs office that said, "Alright, we're gonna send him to you against your will. But you can fire him at the end of six months, but you've got to give him six months." And I did not know any of this, thank goodness. And I set about learning how to be a criminal defense lawyer, and I didn't get fired. And I only learned the story later. But it's a true story. Law school does not teach us how to be trial lawyers, right? That's so true. And this notion that some of us are born with it, I reject. It's just a skill set. And it must be learned. So I've always valued teaching because it saved me and saves many of us. We take young lawyers, and we say, "Here are the skills, and let me explain them to you." And you can become very good very quickly.
Chris Patterson 06:40Well, Larry, look, you're absolutely right. I mean, learning the hard way is to make the mistakes yourself. If you can learn from someone else who's made mistakes and they can share that wisdom with you, that's a much better teacher instead. Oh, absolutely.
Larry Pozner 06:56This notion that we can learn how to try cases in trial. But first, it's not our lives. It's somebody else's life. We may be learning, but they're paying. But the other thing is there are not enough trials. Trials are increasingly rare. They are expensive. They are hard on the body and the mind. But we need to learn how to try a case before trial, not in trial.
Chris Patterson 07:20Yeah. And also, an important part of a lawyer's role. And I understand on your very first day as a newly minted attorney in Colorado Springs, I think you were sent along to court to deal with a traffic matter, but speeding and the prosecutor offered you a deal. You know what the deal was? Well,
Larry Pozner 07:41I did not understand any of this. The prosecutor said you're charged with a four and I'll offer you a two and I didn't know what the four and the two meant. I did not understand that driver's licenses accumulate points for offenses. And if you get too many points, the state takes away your license. And so it is imperative in traffic court to minimize the number of points your client is pleading guilty to. But certainly nobody in law school explained it to me. And so when he says you're charged with a four and I'll give you a two, I don't even know what he's talking about.
Chris Patterson 08:22So what did you do? I called the office called afraid.
Larry Pozner 08:25Class. I said, Listen, guys, I'm over here. And he's offering me a two, what? What's a two?
Chris Patterson 08:32And what did they say? They laughed. Well, that wouldn't have instilled you with a lot of confidence having someone laughing at the end of the line. Yeah.
Larry Pozner 08:40They laughed and they said, take the two and come home. Okay. I will explain it to you.
Chris Patterson 08:46All right. So you managed to do that? I did. Yeah. Okay. And well, that's Look, what would you say? What would be your advice to a young, aspiring trial lawyer, who wants to learn the craft and the art and the science of it? What would be some of the best advice that you could give them given your experience through that process?
Larry Pozner 09:12It's all learnable. It's all learnable rather rapidly. Trial Work is done in a confined environment. It has rules. It has techniques that can be learned. And once you learn the technique, you can do it the rest of your life. And you don't need trials to learn it. It's on paper, you develop the chapter, the story you want to tell a little at a time factually. And then you go into court and you use leading questions and you become the teacher, not the student. You do not let the witness take over the podium you run the show, and personality and voice and movement are all unimportant. Preparation, that is the key, and any voice of confidence. Any personality can be extraordinarily successful. If we've prepared. Did
Chris Patterson 10:11you early on? Did you have the benefit of a mentor at all? Did you have someone that helped guide you as a young lawyer,
Larry Pozner 10:17the head of training in the Colorado public defender system took the time to show me how each part of trial reinforced the other parts, which made perfect sense once he explained it. And then I was fortunate because while I was in this Colorado Springs office, it was a small office, six lawyers. And so there was a lot of feedback, there was a lot of time where you could say, What do I do? How do I handle and having been saddled with me, it was in their best interest to help train me. And they did train me and just just sitting there talking after court is extraordinarily valuable, and nobody has time to follow each other to the courtroom. Now, you may be in court, watching other lawyers and learning. But mostly we train each other by talking to each other. And, and that's the value of collegiality, that's the value of chambers. It's the value of being in a public defender office, is the feedback. And I think the most difficult learning environment is if you're a solo practitioner,
Chris Patterson 11:30let 100 Pacino, I agree with you on each of those points. Now, when did the idea of your book cross-examination science and techniques when did that idea first germinate
Larry Pozner 11:44in the 1980s, my goodness, so I'm old. I was teaching at the National Criminal Defense College in Macon, Georgia, which is an on-your-feet program, which I think lawyers around the world are now accustomed to where you have a, you have a problem, and you do a few minutes of an opening a few minutes of across a few minutes of a closing, get critiqued. And I was there as a faculty member, and I was listening to other faculty members lecture and they were brilliant. And they were wonderful. And I thought, somebody's got to write this down. The book was not me being a genius at trial work. The book was me thinking, there's a lot of people around me who are very good. I need to take notes and put it together. And so, you know, I could see the patterns. And I began to write down how to do things.
Chris Patterson 12:49And you collaborated with Roger Dell? I did. Yeah. He
Larry Pozner 12:52was also on the faculty.
Chris Patterson 12:54Okay. And did you know and Roger for long before they know, no,
Larry Pozner 12:58Roger and I met while teaching. And and I met some of my close associates over the years have been people I've taught with and once you teach with somebody, then it becomes very easy to say to them to call them to, to be in their presence at a dinner table and say, let me run something past you, how would you handle and then we listened. And when I listened, I am listening for a pattern. I'm not listening for how to do this fact, this day. I am trying to figure out, pardon me. Trying to figure out what is the pattern here? What is the problem? And what is it solution? And how does that solution work? Okay,
Chris Patterson 13:46this has been a little a little bit of time, a few moments talking about where cross examination fits in a trial. And of course, if it's part of preparation as well, if we go right back to the very beginning or have of let's just call it litigation in the litigation lifecycle, and it could be criminal or civil, it doesn't really matter. But, you know, at some point, a dispute is going to arise that look at it may be the prosecution disputes or the defense over whether a crime has been committed, it might be that a plaintiff disputes the defendant over whether there's been some breach of some some duties or obligations rights, and something needs to be done to fix it. As lawyers, we start off by taking our legal training and we say okay, well first of all, we need to have a case theory. And there's two parts to a case theory. There's the legal theory, which of course, all of us have been through lawyers have been through law school and were spoon fed, you know, force fed. Case theory. You know, the principles you know how things are to be applied what the law says? Yes. But the second part of legal theory, that the second part of case theory is the factual theory. Now that part isn't taught generally at most law schools, if it is very few that, okay, but this is an integral part. And where does cross examination fit into factual theory?
Larry Pozner 15:27Well, we start with this: the lawyer ought to be the best storyteller on the team. There's something wrong if our client is better at it than we are. So if we start with we are the better trained at storytelling, why would we not make ourselves the heart of the storytelling? And cross-examination is built for that because it permits the leading question, which means really, in a leading question, we are not learning; we are teaching. We are putting forth a fact and asking the witness to respond to us, as opposed to an open-ended question where we put an open-ended question to the witness, we receive information from them, and we cope with it. And what we're doing in cross is we are telling the story of the case. Actually, it's more natural, it's more convincing. And how we get there is pretty easy. I think it's natural. I think if you call a client into the office, they show up and they tell you, in their own words, "This is I got, I got screwed, the guy took advantage of me and defrauded me. And now I owe him a bunch under the contract. And I never should have signed it because he didn't tell me." Or a client says in a criminal context, "Well, I did shoot him. I was afraid of him, and he was going to hurt me, and it was self-defense." The client articulates in their own way what the theory of the case is. No, we then use our legal training to figure out the elements. But I think automatically our brains are hearing the closing we want to give right from the first moment. And then our job is to gather the facts so we can give that closing.

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Chris Patterson 17:28Very good points. So as a lawyer, you're saying that, you know, once we've got the story, we then need to formulate the theory, and then work out how we're going to prove that theory. And perhaps, is that where cross can have a role to play because there may be some things that we need to prove or disprove. And cross-examination may be the way we're going to do that.
Larry Pozner 17:57I think cross is the most efficient way to prove it. Because once we start saying, "I'm only going to prove this through my witness," now we're committed to calling the witness, and witnesses fumble; witnesses do not tell stories as well as lawyers tell stories. So I think cross is the natural place to win the case and minimizes the need to call witnesses. We still may do it. But let's not put the weight of the world on them. Let's see how much we can prove of their theory without them. And then "theory of the case" is another one of these phrases we have used it forever. And we were told it in law school, "Develop a theory of the case." And then we graduate and people say, "What's your theory of the case?" I think another way to say it is, what is your narrative? What is the story you want to tell? Because it sounds so much more natural than "theory of the case," which sounds so abstract. It's, it's, "Hey, my guy shot him, and I'll tell you why we shot him." She's identifying my guy as the robber. But her description is of a guy that is much taller than my guy, or so and so says she saw something but it was very dark. And I don't think she's a good eyewitness, and I think she's just made human error. It's putting the jury in touch with the realities of life, not the realities of law school. Yes.
Chris Patterson 19:33And look. So jury or judge alone Fact Finder. Are you saying that this is really the process of two competing stories that the Fact Finder is going to have to prefer to competing one of the competing stories?
Larry Pozner 19:52I'm trying to avoid that. Okay, if that's the surprise, if there are too well if I understand, if there are two competing stories, then a judge or a jury has a difficult problem-solving decision as to which to believe. In modern cross, we try to get their witnesses to admit facts that help our story. So that we're not saying to a judge or a jury. There's their version and my version, and mine is better. What we're saying is, Your Honor, even their witness admitted a, b, and c; this takes the judge or the jury off the hook; they are no longer weighing which side do I believe they say? Well, clearly I can believe this fact because it was admitted by a witness who's not on your side. And if they admitted that fact, the only reason they would admit it isn't that you train them in your office; they're not your client. The reason they admitted it is it's true. And then the next thing we learn is, in trial, it is not a competition between lawyers, not in the least. Did he, it isn't about who's the better
Chris Patterson 21:11lawyer, whatever that means, between lawyer and witness absolutely not
Larry Pozner 21:16between us and witness; a trial is about a burden of proof. In a criminal defense case, I am not there to prove innocence; that is very difficult to prove. All I need to show is that there is a doubt based on reason and common sense. And my opponent can be extraordinarily good; can be very polished. So what? So they can be very articulate. But if they run out of facts before they get to proof beyond a reasonable doubt, I win. It's not a competition as to who is the better lawyer; it is a challenge to the rule of burden of proof.
Chris Patterson 21:57Now, this is a point that you also just going back to one of your earlier points, that you make this in your book, about the value of an opposing witness that your cross-examination, and that they are a very valuable resource not to be squandered or wasted. And you point to a number of things you say it admission from an opposing witness is worth so much more in the mind or given so much more weight in the mind of a Fact Finder, then your own witness, trying to give that point. So that's a value you make? Yes, it's
Larry Pozner 22:31so much stronger to get an admission. You know, we teach in law school abstractions. But at the heart of the abstraction, there is common sense or the abstraction wouldn't exist. One of the abstractions we teach in law school is an admission against interest. Fascinating phrase that nobody used in life until they went to law school, an admission against interest, which says, it was not in your interest to admit that fact. And because you have admitted that fact, and it hurts you, it has even more credibility, because clearly you would not hurt yourself if you had a choice. But what we're doing in cross is a series of admissions against interest. Cross is not fundamentally about showing that a witness has lied. That's our back foot; cross is primarily about getting a witness to tell the truth,
Chris Patterson 23:29or at least the perception of the truth will
Larry Pozner 23:33certainly but if an opposing witness has the perception that something is true, and it helps us it's going to be believed because our opposing counsel and not argue to a judge or a jury. I know my client said something on the stand, but I don't want you to believe it. So
Chris Patterson 23:53it's a very good point. And I think a large part of this is what you say in the book is the constructive cross-examination is that
Larry Pozner 24:01we're using cross. We're not just beating up on people. That's old style. We are we're saying when a witness takes the stand, they belong to everybody. They take the oath to answer the questions. Let us use our opponent's witnesses, so far as it is safe and valuable to get in facts and not hold them back for our witness. If if my client says he was kicking me, and I pulled a gun because I thought he was going to, to kick my head off. Well, yes, that's my client's version. But can't we get the complaining witness to admit that he was kicking our client, and that he was kicking him repeatedly and that he was aiming for his face. Now if we get that from the opposing party from the complaining witness, it has more credibility. You know, our client may take a stand and say it. But but a judge or a jury says checkmark, I've heard it all you're doing is verifying that which I've already known,
Chris Patterson 25:09which is an important part of fact-finding is actually starting off with things like what are the agreed facts because that creates an anchor point or a foundation upon which the disputed facts will then be analyzed? Yes.
Larry Pozner 25:25And judges and juries are reluctant to find a lack of credibility among police, government officials, and people of high standing. There is a difference. But when we say to a judge or a jury, "Who admitted this fact?" they did. See, we're not asking the judge or the jury to make a harsh finding against a person. We're saying, I want you to believe the person. But let me try it another way. Judges do not like to find that a police officer has deceived,
Chris Patterson 26:12it's quite a big leap for the staff to take.
Larry Pozner 26:17Or a social worker or somebody else in a criminal case. But if we phrase it differently, we get judges writing findings of fact that say, "Even the police officer admitted A, B, and C." So that the judge is saying, "Don't blame this on me. I'm not finding the cop was incredible. I'm doing the opposite. I'm pointing out that the cop himself or herself testified to the following facts, which assist the defense is neat."
Chris Patterson 26:48I mean, you're fatalist in large part to the modern method of cross-examination. Would it be fair to describe it in part as almost like a hybrid towards an inquisitorial approach, where the lawyer conducting cross-examination using sort of more of a constructive cross-examination method as is almost going through an inquisitorial approach with the witness to get the witness to tell their story. But controlling it in a way that the narrative comes out the way the lawyer wants it to be? Yes.
Larry Pozner 27:22If we're going to be very technical about it, and I'm tending toward this, as the evidence in trial comes in through the witness, however, in modern cross, we are not seeking evidence, we are seeking affirmation of evidence that we have given leading question says, "You did a thing, you saw a thing, you said a thing," I am asking the witness to verify information that I have given. And the result of this is that we are making our lives easier. Because if we do it the other way and ask in an open-ended way, "What did you see? What did you hear? What did you say?" We're betting we can keep up or betting we can cope with whatever the answer is. We don't want to see if we can cope, we want the witness to cope with us. We want to say, "I put it to you. This is a fact. You witness have a diminished role. You can say no, that's untrue. But if it's true, you'll admit it because there's too many penalties. There's too many ways I can prove things if you deny that what you should admit. We are the giver of information. The witness is a verifier of information. They
Chris Patterson 28:53provide the confirmation. That's it. Yeah. And hence the important I'm understanding you say now the importance of the lawyer being a storyteller.
Larry Pozner 29:06Absolutely. And then if we really look deeper into what's happening. What does the witness learn from us? What the witness learns is that we are prepared. What the witness learns is he or she knows what happened. He or she knows what I said or did. This intimidates, in turn, intimidates in an ethical way. It's not loud. It's not flashy. It intimidates by saying, I, the lawyer, am prepared to get at the truth. Remember, the object of the trial is to get at the truth not to expose the lie. Our techniques for coping with a lie are forced on us. We need them, but it would be better if we didn't. It would be better if the witness admitted the truth rather than then we expose, "You've hidden the truth." So our first obligation is to get the truth across to a judge or jury.
Chris Patterson 30:08Yeah, but I guess the practical reality is, is that nine out of 10, 19 out of 20, if not 99 out of 100 witnesses? Well, there's nothing to be gained in cross-examination by trying to expose them as not telling the truth. I mean, most witnesses the utility is the point that you're making. That is to get them to confirm the story that you're telling, that you're intending to address, the jury or the judge at the end of the trial

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Larry Pozner 30:37guess where we, where we get deep into credibility crosses is where we say, there are certain things I can prove you have not told the truth about, and they're so important and so many that I can get the judge or the jury to ignore everything you've said simply because you just can't be trusted. And so sometimes we are into impeachments, not on a selected point, but overall, to say to a judge, just flush this witness this witness is simply not to be believed. But most of the time, we're taking an individual point. And we're saying that you said X, but I have your transcript. I have your police report. I have this that that shows you've said it a different way at a different time. And the way you said it first time is the accurate way.
Chris Patterson 31:30And what is inference or inferential reasoning fit into cross-examination,
Larry Pozner 31:36inferences are dangerous. The reason inferences are dangerous, they're necessary. But the reason they're dangerous in cross is because they're not a fact. If I ask a hostile witness and hostile to me simply means they have skin in the game in their voting. The other way, I ask a hostile witness to agree with my inference. They can say No, I disagree. And I've gotten nowhere. What we want is to prove up facts and let the judge or the jury derive the inference that is natural. That is logical. But we don't need and should not ask the witness to agree with the inference. We keep the witness in fact-bound inquiries. And let the inference flow in the minds of the only people who matter people who vote judge or jury. I
Chris Patterson 32:31guess this is your point about getting from the witness to confirm certain facts, yes, walking them through so that the inference to a large degree saying it is going to speak for itself? It doesn't matter what the answer is that the witness gives. The judge and jury is sitting there, they already know what conclusion they'll reach from it
Larry Pozner 32:51right? If we say self-defense, self-defense is an abstraction. It is the culmination of, I believe, factually, that when faced with the following situation, you should act to defend yourself, well, what is the following situation? So if we put forward the facts, the judge or the jury will arrive at the inference the same thing is true and commercially. So civil, civil, yes. When we say my client was taken advantage of my client was sold something under false pretenses will what are the false pretenses what were the things that were said that were untrue? And how did it cost my client? What what what had caused my client to lose money? And then the judge can say, "Okay, this fits into what the law says, is a fraudulent statement or fraud by omission of material." Those are abstractions. But he's saying to a witness, "You will agree, sir, that you omitted to inform my client of material facts." What in the world does that mean? Liz Lumad Law School teaches us our abstractions. Well, that's okay.
Chris Patterson 34:12Well, law has an abstract construct. Absolutely.
Larry Pozner 34:15Absolutely. But that's all what law school is, is the learning to appreciate the abstractions. And so we have a fiduciary, and then we learned that there is a fiduciary duty and then we learned that there's such a thing as a breach of a fiduciary duty, we've got abstraction piled on abstraction on abstractions,
Chris Patterson 34:38and then when we add, you know, loss to that as well in the future, as another abstraction
Larry Pozner 34:45exactly, but if we prove it up, factually, these these words, that now can have shaped to them. Yeah,
Chris Patterson 34:53and look this, I guess this is really you know, the large importance of that distinction between legal theory and case theory. I mean, the law is a construct. It's a set of rules that is meaningless in a complete vacuum unless you've got facts that you can add to them. It's only through the facts that suddenly we've got something that's reassuring.
Larry Pozner 35:17Everybody can agree on a principle of law. Yeah, both sides could agree on the principle of law, but they disagree on whether the facts fit that principle. Correct. Correct.
Chris Patterson 35:27Let's dive a little bit deeper into the science of behavioral economics. How does it help people take shortcuts to decision-making? What's that?
Larry Pozner 35:38Well, that's fascinating. Dan Kahneman just died, I think a week or two ago, won the Nobel Prize in 2002 in economics, and your listeners may say, why would I ever care about such a thing? Well, there are two unusual things. Dan Kahneman wins the Nobel Prize in economics, and he's not an economist. Wow. Right? Fun fact, right? Well, in fact, why does he win the Nobel Prize in Economics? Because he says and proves all economic thought has been erroneous. Your entire science is erroneous. You built the science of economics, and economics, we think of economics as dollars, it's just decision-making in matters of importance. You built it on the theory of the reasonable person, the reasonable person gathers all available information before making a decision, considers the information logically, and makes the decision which is logical. That's just not true. People don't gather the information, they make very quick judgments. And the reason we make quick judgments is it's evolutionary; our brains were designed to help us with survival. When you saw the strange animal, you did not say "I think I will stand still and gather further information," you'd get eaten by the tiger. And so we developed quick reactions based on limited information. And the next thing is we don't behave logically, we take the shortcuts. Now, the shortcuts often work, but often don't work. Let me give you an example. Economic thought says a person will make a decision based on the logic of the situation and will always pick that which is to their advantage. If I tell a person, "I have 100 marbles in this jar, and 51 are green, and 49 are blue. And if you can pick a green marble, I will give you $100. But if you pick a blue marble, you must give me $100." Economic thought was that the person says, "Okay, I will do that because it's 51/49 in my favor, the odds are better." Right? Nobody takes the bet. It's not... they say, "I won't bet unless we can make it 52/53/54." The studies say you must get very, very close to 66; you must get overwhelming favorable odds. Why is that? Because we hate loss more than we love an equal gain; a loss of $100 bothers us a great deal more than a win of $100.
Chris Patterson 38:53Significantly more, even, I think the studies say.
Larry Pozner 38:57Absolutely. And so, another part of the human mind: once we make a threshold decision, we look for information that we're right. We are not good as human beings at saying, "Let me question my own judgment." Our minds are biased; we look for information that tells us my first thought was right. Confirmation bias. Absolutely. Let me give you an example. When President Trump has a phone call with the prime minister of Ukraine, and it's not taped, but there are notes as to what happened. Why is it that the Democratic Party in the United States can say this is a horrible phone call and it has a quid pro quo, "you're going to help me or I'm not going to help you," and the Republicans can say this phone call is absolutely appropriate, and they're looking at the same phone call? Neither one is lying, same set of facts, absolutely the same set of facts. But in the minds, when we're on the side of something, we look for the evidence that tells us we're right. And so there's biased thinking. This is very important because we need to start winning votes with a judge or a jury very early in the case.
Chris Patterson 40:21What's an example of this sort of behavioral economics thinking? For example, stereotyping. You know, when you get a witness in the witness box, you start stereotyping, because it's a human characteristic.
Larry Pozner 40:36Absolutely. It's called the halo heuristic. Once we have an initial impression of a person, we tend to think of them only in that box. If I give you some discussions of a human being, and I begin the discussion with their diligent, they work very hard, they are well-educated. And I then say, they have a bad temper, and they can lash out and they frequently make decisions too quickly. You will be more biased to believe them, because I began the discussion with the positive characteristics. Now, if we take the identical list of characteristics and read them to a person in a different order, inside of two minutes, we create a different impression. So, when the cop takes the stand, many people in society are ready to believe the cop because the cop is an authority figure. But if we begin our cross with sloppy police work, it is likely that we can rebrand them, that we can characterize them in such a way that a jury says, "You have let me down with your bad police work." Well, we don't want them to get on a roll; our impeachment needs to come earlier in the cross rather than later. So, motive interest and bias is a way of changing people's perception of a witness. We need to do those chapters earlier in cross.
Chris Patterson 42:16You make this point in your book, and I'm not trying to give away the secret sauce here, of which, and I'd encourage anyone who was interested in cross-examination, or particularly if you want to get better at it, you know, the book is a fantastic resource. There are charts to get from America. I'm told it's very difficult to order books from America.
Larry Pozner 42:38Well, it's one of the disadvantages of being probably the furthest country from America that you can get. You know, although New Zealand does its best to have direct flights. But it's a long flight.
Chris Patterson 42:53Write me a note, and I'll work at Posner on cross@gmail.com, and I'll try to help you, but it is difficult. It does look like you can't walk into your average bookstore and sitting there, it certainly is. And look, I know because I've had discussions with LexisNexis, who are the New Zealand distributor, yes. And they have said to me it's a two to three-week wait. It's the bulkhead please, yeah, these lace-up things are coming by the slow boat.
Larry Pozner 43:23I think it is coming from the slow boat. I think nobody wants a book that weighs three and a half pounds. Nobody wants to pay the freight on a United Airlines; they want to put it on a barge.

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Chris Patterson 43:35Yeah, what absolutely, love the other. So the other side of it is that if you do want to get the book, it is available as an e-book. So you can get it instantly if you're an e-book and client. Let's go back to the science a little bit more, you know, and again, in your book, you do mention, and there is this section on some of the cognitive neuroscience, and particularly you make the point that one of the reasons for preparing cross-examination is that the trial counsel has quite a Herculean task ahead of themselves. You know, whether you made the point before you need to be the master of the facts. And you need to demonstrate that to the witness. Now, that in itself isn't necessarily an easy thing to do. But in terms of how you're going to conduct the cross-examination, you make the point this is where the preparation is essential because of the way our brains work. Now, can you tell us more about them?
Larry Pozner 44:34The brain does not react well to pressure, to tension. We have a limited number of neural resources operating at any one time, and we can exhaust them. And when they are exhausted, we make bad decisions. Let me give you a common example. Sometimes we're reading police reports or discovery or something, and we realize we've been reading the same page over and over and over, and we can't remember what's on the page. Our brain is tired; we need to take a break. Well, anxiety tires the brain even faster. If we are conceptualizing cross-examination from the podium in trial, we are constantly problem-solving. And we are exhausting our own brain. To the extent that we've written our crosses and know what we want to do, in what order, what documents we need, we are no longer problem-solving those problems. We are not using our neural resources in trial for the purpose of, "I wonder what I should ask next." This gives us more neural resources to listen to the progress we're making and say, "Gee, I've just won this point, I don't need to keep going." Or sometimes we say, "I'm not going to win this point with this witness. Let's move on; let's not dig deeper." So really, what we're doing is we're using our brain, our neural resources more productively, with a modern approach to cross.
Chris Patterson 46:21Now, of course, there's also for the for trial counsel, it's a multitasking event, because you're not only having to ask the questions, listen to the answers. And in your book, you make the point, it's an imperative as well, the importance of keeping eye contact with the witness, particularly when it's getting tough. But isn't there also a role for the examiner, a trial lawyer doing the cross-examination, conducting it, to also somehow keep an eye on the judge or the jury, the fact-finder, to try and see if there's some feedback being given, particularly in body language, on how that progress is going?
Larry Pozner 47:08I think there is a role. However, each of us individually has a different comfort zone. For me, I am, by and large, consumed with keeping my eye on the witness. I am not very good at keeping my eye on a witness and the judge and the jury. However, because I've preserved my neural resources, because I'm scripted, I can catch the judge making a face; I can see the jurors putting down their pen and paper because they don't believe the witness. I'm not looking for it. But I'm more able to see it without effort because I've left myself room mentally; I'm not absorbed with "What should I ask that's on the paper?" But you're right, we get cues all the time. And we call it trial judgment. But it really isn't. When we call it trial judgment, we are implying because of our years in trial, we have learned things. That's not really what's happening. It's social judgments. Trial is just, it's just a social interaction with particular rules. We've been to a party and realized that we're talking to somebody, and they're fascinating, and they're enjoying talking to us, and we're enjoying talking to them. And we've seen situations; we've watched from across the room and not even been able to hear what two people are saying and realize these two people are arguing. And they're in a social situation; they're not loud, they're not ugly, they're not pointing, and we can look at their facial expressions and say these two people are arguing. What we're doing in trial is we're just taking things we've learned socially and applying them in a courtroom setting. Absolutely. Yeah. And these are important skills, and also the skills that can be taught. Yes.

Larry Pozner 49:31: We've got to get away from this notion that trial lawyers are born. That's absurd. There's nothing natural about being a trial lawyer. It's difficult work. But if we prepare the stories we want to tell, then we feel more confident as we tell them in court. Then we are more persuasive. Not because of oratory, not because of gestures, but more persuasive because we've stacked up the facts logically. So we can learn the techniques outside of trial and employ them in trial. Trial is not the place to go to learn how to try a case. (01:12):
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Chris Patterson 50:19: Very good point. And I guess for some trial lawyers or aspiring trial lawyers, the saying actually a lot of the skills that are going to be essential for them to be effective, they can actually learn out of the courtroom, often more in social settings. Absolutely. We've (01:13):
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Larry Pozner 50:39: We've tried to mythical lies that we've we've tried. It's such an egocentric profession, and it does not serve us well. And the egocentric lawyers at the top of the heap need to convince us that they're great, and we're not. And it's just not true. What we can do is we can become very good, very early, with preparation with systematic preparation of the stories we want to tell, the facts we want to use. (01:14):
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Chris Patterson 51:14: Now, you've raised the point about ego in your book. I've one of the takeouts I got from that is that the ego needs to be put into check because it can be very dangerous for a trial lawyer and in particularly have devastating effects for their client if the ego isn't kept in check. (01:15):
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Larry Pozner 51:37: Yes, we're. It's not a contest between us and the witness. It does not even matter if the witness perceives that we're winning. They don't get a vote. In many of our best crosses, are getting witnesses to quietly say yes to things where a judge or jury says, "Wow, that really helps." But our voice isn't, "Wow," it's our gestures. We do not want to give away that we're winning. And so we rise to the bait, sometimes the witness one up me, so I'll one up, the witness is just getting in the way. Think of it this way. Trial is a classroom. And our grade is how well the students do, not how well we do. The only valid grade of a teacher is how do the students do? The students are the jurors or the judge. Have we taught our case? And so we need to be quiet and efficient, not loud and angry. A very good point. (01:16):
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Chris Patterson 52:43: Last bit of sort of some of the science before we talk about the chapter method of cross-examination a bit more, again, on the area of cognitive, but this time more cognitive psychology, you do make your address in your book about how the brain prefers to acquire information and how that operates. Can you tell us a little bit about? (01:17):
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Larry Pozner 53:03: Sure. We are learning so much more about cognitive neuroscience in the last 234 decades, and the reason we are is because of the FMRI machine. What happens is we are now capable of putting people in a machine and the machine telling us showing us what parts of the brain are activated by what things. So for instance, we can read a story to somebody who's inside the machine and see how their brain is reacting to various emotional components. So what we learn about the brain is that the brain wants information in small bites, the brain does not want a long stream of facts that the brain must break down into individual bundles. If we will break our stories into individual bundles, we have relieved the brain the brain can learn. The other thing we learned is when the brain gets tired when the brain says you're making this heart, the brain turns off, it can listen, but it won't remember and it won't problem solve. It may hear the words but not perceive the meaning of the words. We've got to make it easy for a judge or a juror to follow our points. (01:18):
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Chris Patterson 54:36: And I guess this links into why you advocate very strongly throughout your book, this chapter method of cross-examination is because is it because of that? Well, one of those points, (01:19):
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Larry Pozner 54:51: It's because it's just natural. If I had an easier way to do it, I would do it. I am looking for the easiest way for me to prepare and present. And the easiest way I found is to look at it as a series of small stories, and prepare each small story. And by small story, I mean a minute long. Because that's what life is. It's a thing followed by a thing, followed by a thing. Now, each part of the story may influence a later part. But that's how life goes. We do a thing. And the thing leads to a thing which leads so think, take self-defense. We say my client acted in self-defense. Well, there is an abstraction. So we say, well, what do we mean? Well, he was frightened. Well, there's an abstraction. So whose turf? Were they on? What time of day or night? Was it? Did the complaining witness take off his leather coat? Did he swing the coat need to take a step forward? Versus a step to the side versus a step to the back? Did he have his friends with him? How many friends? How big are the friends? In a fight that's two minutes long, there could be 20 stories. Now, there may be 12 that we hate. So we cross on the eight that we love. We don't have an obligation to say, "Let's go through every part of the case." It's modern crosses, let's go through the parts of the case that assist me. (01:20):
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Chris Patterson 56:33: In New Zealand, we do have this obligation that when we've got a witness who may know something that's relevant to a case, and it's going to be in dispute that we really have to put it to them. But I understand your point is that with your planning of your cross-examination, you know, focus on the points that are in highlight that are going to be good for your case and walking in provide the contextual, factual background, that's going to lead to the point, presumably, that you're going to make in your closing. (01:21):
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Larry Pozner 57:05: Exactly, let's take the complaining witness hurls an insult at our client. Yeah. Okay. They'll admit that if we ask, let's take our client hurls an insult back. I don't need that. It may be true. But it's not in contention. I don't have to say, "I put it to you, sir. And then my client insulted you." I don't need that chapter. That's for the Crown to bring out if they wish, but I don't need to do, "And then my client did this. And then you did this. And then my client did," which we're selecting the things that are most beneficial to our narrative. (01:22):
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Chris Patterson 57:47: And this is, I guess, what you talk about when you talk about Chapter bundles that is linking. We're telling big stories by linking them with smaller stories. Sure. (01:23):
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Larry Pozner 57:55: And that's, that's again, it's life. Somebody says, "How was the party?" and we say, "Well, the party was a lot of fun." When there's an abstraction. Well, "Why was very good food, but there was an open bar. I saw lawyers there that I haven't seen in months, because everybody's been locked down." And we take it apart and we say, "Why did we enjoy the evening?" Well, that's what life is. Life is a series of events. And what a chapter bundle is, is a recognition that most things that happen are a combination of facts, not a simple fact in isolation. So we break these things down into their smaller components, stories and tell them one after the other, so that the context helps. (01:24):
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Chris Patterson 58:45: So in terms of saying that one after the other, you're talking about sequencing, what's the role of sequencing in preparing and executing cross-examination? (01:25):
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Larry Pozner 58:56: Well, sequencing is a modern approach that says, we don't necessarily have to say, "Let me begin at the beginning and go through to the end." Remember what we said about the halo effect that people form a quick opinion of a witness. If we say witness has poor credibility, if we say a witness has changed their story on what they saw, we may want to lead with those chapters, and then get into other things. Now, we may need to show where they were put some context in. But, but what we're doing in sequencing is we're taking those chapters that we've written, and we're laying them out on the table, and we're saying to ourselves, "What is the order? I wish to do this in if, if our client in a civil case was misled, into making an investment, and there were three things that misled them, we don't have to start with But the first thing we might start with the biggest thing? Sure. And that may have been recent. So we're not saying I must go chronologically, we're saying what has the greatest impact?" (01:26):
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Chris Patterson 1:00:11: Yeah. What is going to sort of create that well momentarily on and get the jury or the judge thinking about us? (01:27):
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Larry Pozner 1:00:17: That's, that's right. Yeah. And so sequencing becomes very easy once we've written our chapters, because now they're on individual pages. And and then it's much easier to say, "What order do I want to do them in?" And then remember, in this concept of Chapter bundles, when you have a story that breaks down into a series of smaller stories, self-defense, once you're into a bundle, stay in the bundle. In other words, if we're talking about what happened that night at the fight, we don't want to take a detour out of the fight and say, "By the way, you'd fought with my client a year ago over something else." That's a different story. Once we're in the fight, let's do the fight. Once we're into the memo, what are all the things that are wrong with the memo? Look, (01:28):
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Chris Patterson 1:01:09: I know exactly what you're saying, I just want to now move to an area that there's certainly trial lawyers who will love to hear you talking about and that is questioning techniques to control witnesses, because anyone who's done enough trials will have had a witness who, who certainly wants to run it their own way. And keeping control of them is essential. So how do we control? You know, well, what are some of the ways that a trial lawyer can control it control a witness and cross-examination? (01:29):
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Larry Pozner 1:01:46: The easiest ways are always the best ways. Questions need to be leading, because without a leading question, we're giving permission for the witness to go where they want. We deny permission, we say answer my leading question. The next thing is keep the question short. And the third thing is, keep them in bundles that logically relate to each other. So a jury can spot an answer that is illogical. Now, once a witness begins to evade, our heart goes, pitter-patter, fight or flight starts within us. It is important to recognize the most fundamental point about what is happening. If the witness is evading, it's because they don't like that question. If they liked that fact, they'd be pouncing on it. And evasion is an admission by a witness that they don't want to answer that fact. Why would we leave it? Our first instinct is let's get back to my fact. (01:30):
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Chris Patterson 1:02:52Okay, now what about the use of questions that deprive witnesses of time, so that they're not given the talking stick, and then they can go off on their own tangent, that's.
Larry Pozner 1:03:05Very good, the talking stick, we don't give them the talking stick. What we're doing is we are asking the witness to respond to us, we are making ourselves the storyteller. So we deprive them of an opportunity to take over the narrative, to take over the podium. And it is easier to keep them in line than to get them in line after they're out of line. So it's easier if we say right from the beginning, I will propose a fact I believe to be true, and you will respond to that. And if you don't respond, I will force you to respond. Not I will chase you down the rabbit hole into wherever you're going and see if I can best you. What we're saying to the witness is this goes better for everybody if you will answer my question.
Chris Patterson 1:04:03Now, is that different too, because you do in your book make the point that there are mistakes that cross examiners can make and one of them is doing a deal with the witness?
Larry Pozner 1:04:14Yes. When we give away our nervousness. Of course, we're nervous. But if we say to a witness, "I'm going to ask you simple questions and they call for yes or no answers. Will you promise me to answer yes or no?" we're showing weakness. We're trying to get a commitment that I don't think we're entitled to. Just go to work. In other words, we say to a witness, think about this. No matter how nervous we are, this is our profession. We picked it up. Imagine how the witness feels, they are really far more nervous than we are. What we want to say to the witness is you are in a strange environment. But it isn't strange for me. This is another day at the office, this is home, and I own this room. I have trained my entire life for this room, and I will talk to you in simple words. I will not be demeaning, I will not be confusing, I will not play tricks. I will ask you straightforward leading questions, and you will respond and you will get through the day easier. And if you try to deceive, I have a group of tactics available. One of the most frequent is I'll show a prior inconsistent statement, I will bring out a transcript, I will bring out a police report and I will show you, "No, no, it's not what you said before." I will do something that says to you, you would have been better off being honest.
Chris Patterson 1:05:49So if you were uncomfortable now, you're going to be far more uncomfortable if you go off script.
Larry Pozner 1:05:55Absolutely. And when you, the witness, go off script, here's what you are doing. Cognitive Neuroscience, you are problem solving. You are problem solving, how do you evade me? You are doing it in real time, under pressure. It's not likely you'll do it well. I don't want you to do it. But to the extent you, the witness, do it, you know what's going to happen? It'll tire your brain out, and the tired brain makes more mistakes, says the truly stupid thing. And people say to us, "Wow, you should have seen the cross, it was unbelievable." Usually what has happened is the lawyer is just doing regular good work, just pounding fact, fact, fact. The witness is trying to deceive, and in trying to deceive in problem solving, they have said something pathetically stupid. And we give the lawyer credit for being a great cross examiner, probably for the wrong reason. They produced it. But it wasn't their intention. Their intention was simply, "I'm going to ask you another leading question and another and another." And you on your own said something stupid, and I'm prepared enough to take advantage of it. That's all. Yeah.
Chris Patterson 1:07:20I guess what you're saying is often, what appears to be a masterful cross examination is a combination of a number of factors, but one of the factors in there as possibly the witness's ineptitude at answering a question or witnesses' fatigue?
Larry Pozner 1:07:36And yeah, and the more a witness fights, the more likely they are to say the dumb thing. Let me give you an example. I had an expert witness recently in a case. And when I say an expert, I mean the expert in his field, yeah, a trust faculty at Harvard. And if you read the transcript of the cross done by my opponent, the opponent would ask a question, and my expert would say the word "yes" repeatedly. Said the word "yes". Now reading a transcript, somebody would say, "Why isn't he fighting?" Yet? I thought this was the best expert I'd ever had. Why? Because the question is phrased was honestly, "yes". And "yes" gives away the least amount of information. The witness had enough savvy enough confidence to realize if I, the lawyer, wanted an explanation, I could stand up in redirect and ask for it. But it isn't for the witness to try to figure out how to lawyer the case. So, so good.
Chris Patterson 1:08:55Advice for anyone listening about whether the power of reexamination, that's that spot on, right?
Larry Pozner 1:09:01It's not if we try to take these witnesses who are nervous to begin with and tell them fight back, Lord knows what they're going to say. The person most able to win the lawsuit is the lawyer. That's it. And we are a better guide to the evidence. So let's not give up our role into in and try to encourage the layperson to talk more.
Chris Patterson 1:09:32It's very, very, very great. I've got a couple, Larry, I've got a couple more about techniques for controlling witnesses and then I want to move chapters or topics. So forming questions that shrink the field of evasion. Now, what does that mean?
Larry Pozner 1:09:52Well, if I say to you, "What did you do next?" I don't know what you're going to say. I think I know, but I don't. Because you may say, "Well, my first thought was the time five years ago that he beat up his girlfriend." You see, what happened is, is I am thinking I know where you're going to go. But I've given you permission to go wherever you want. We shrink the field of evasion by making the question very small and very direct, then you did X. Okay? Now, if they evade, everybody can spot the evasion. Everybody, the jury, the judge can say, "Wait a minute, the question was very small, very straightforward. And you didn't answer it."
Chris Patterson 1:10:38Don't open too many doors.
Larry Pozner 1:10:41Don't. It's right. Let's stop betting we're faster than they are. Let's start saying, let's just keep this under control, a moment at a time a question or at a time, about fact grouping, grouping facts to use your opponent's witnesses to tell the stories or how stories,
Larry Pozner 1:11:03What we've done historically, in old style cross is we saved up things for our witness. So we've made a longer agenda. So that makes the direct exam more difficult longer, and makes the opportunity for our witness to say the dumb thing. More likely. What we're doing in modern cross is we're saying, what facts can I get from an opposing witness? So that I don't need to save it up for my witness. It's a very conservative method of trial work. People say the conservative method, the old style conservatives, well, we'll go over this in the office and I'll put my client on to say it I'll put my witness on that's not conservative, that's risk taking. The risk is lessened if I have a plan to get your witness to admit something. Yeah.
Chris Patterson 1:12:07That's a really good, good way for us to transition now into I just want to pick up on some of the things you've learned over your illustrious career. I'm just reading through some points that you've made in an article that you wrote. One of the points that you make, as you say, Never follow a brilliant inspiration in the midst of a trial.
Larry Pozner 1:12:36What? Why would we think that under pressure in a courtroom, a new thought, is valid? If we didn't figure it out in the office in all of the weeks and months preparing for trial, uttered it escape our attention. It is more likely that in the excitement in the adrenaline we are we are leaping at a conclusion. The way to to win a trial, and not not every trial can be one, let's make sure we understand it. But we we look at a trial and we say what maximizes my chance of winning. And then we stick to that plan variations from the plan decrease our chance of winning. It is it is so unlikely that there is a brilliant new path to victory that we saw only in trial. Now what can happen is that a witness can say something we never thought they'd admit. And our case got immeasurably stronger. But still, that was a reaction to our planned cross that wasn't out of the blue. But when we when we are at a podium and we say I see a whole new subject area that I want to inquire on, don't do it. When we teach first year law in the United States, we have a course called civil procedure. What what are what are the rules of court, right? Yeah. And we teach depositions, and interrogatories and requests for production of documents, we teach the ways you can ask for facts before trial. Before trial, trial is not the time to do discovery trial is not the time to say you know, there's something I've always wondered about. I think I'll ask it now. We're not prepared. We don't have a safety net. So stick to the plan. Okay.
Chris Patterson 1:14:50All right. Great advice. One of the other pieces, so many things in here, though we had to carry on I want to move on to the One though. You make the point that your 10 greatest victories, seven of them will be deals, nobody will hear about the deals, but they'll count just as much.
Larry Pozner 1:15:09We
Chris Patterson 1:15:11win. So true. So true. We

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Larry Pozner 1:15:15trials, what we remember and trials, the most visible thing we do. But great lawyering is designed to minimize risks to a client and to gain for clients that which they need. If we gain for a client that which they need without a trial? I think it is, I think it's obvious that's better than gaining for a client what they need with a trial, a trial represents risk. If we can get what we need for a client without the risk, and without the cost, why wouldn't we? No, we don't reward that because it's not very flashy clients like it, that's enough. That's what the clients actually engage us to do is to resolve the matter. Yes, they don't they don't come to us and say, We want you to take this to trial.
Larry Pozner 1:16:00Trials where you go, and you have not accomplished your goal without trial. Now we need to know how to try case because what we say to an opponent is, there are reasons you should give me what I am seeking. Because if you don't give it to me, I can get them in another way.
Chris Patterson 1:16:30Well, it's the backup mechanism for resolving disputes. But it certainly shouldn't be the primary focus. You see the odd thing about this, I'll just share something with you as you're in New Zealand, we have the service and a bar of barristers called kings councils. You know, these are, these are silks, and we've just had a round, we are aspiring junior members of the bar have put their name forward to become a silk, like silk. And there's a criteria, there's some object, there's supposed to be objective, I'm not too sure how strictly it's applied. But they asked you, you know, what are all the cases that you've been involved in the last five years now, I didn't apply in this round. And I didn't apply in the last round either. But I did have a colleague, this round was asking me to have a look at the application. And I said, Hey, you haven't mentioned anywhere in here any other settlements that you've done? And they said to me, Well, they're just asking for the trials. And I said, Well, I think you should put in the cases that you've settled in and put the name of the mediator, if it was at a mediator put the name and the they were the mediator, because, you know, that's your these are your greatest victories is that you prevented something from going to trial, and you got a great outcome for your client.
Larry Pozner 1:17:52Exactly. And how did we win in the mediation? Yeah, how we won in the mediation is we prepared our facts so that we demonstrated to the mediator and the opponent that we would win in trial.
Chris Patterson 1:18:05Yeah. Or certainly that the risks were high enough for them to say, "I want to say, could be worse, if I don't settle." And see, again, it's the preparation. It's, you say to the mediator, "Nobody's going to believe their client." Well, that's an abstraction. You say to a mediator, "Let me show you what they wrote in this memo to investors. And let me show you why in three places, it is misleading. Now there's a fact for the mediator to go to the other side and say, 'I don't know that you're going to survive this language.'" We should not hide from our opponent the strengths of our case and the weaknesses of their case. When we hide what we intend to do at trial, we make trial even more likely. What we want is to say, "Let me tell you how I'm going to propose to win. We want them to consider it." And so it doesn't matter how much we show them. They'll always think we hid stuff anyway.
Larry Pozner 1:19:06Yeah, exactly. You're right. And in Coulson, again, I'm kind of cut through some of these pieces of advice in here. It's such a great goldmine. You do make the point that preparation is still the greatest technique for winning. Hands down. It was before it was the Uninstallers now, yeah, we idolize glib and showmanship, and they are whipped cream, they are not substance. And in fact, they get us in trouble as much as they help when you get loud and demonstrative than you can you can get a judge to shut you down. But you can get a juror that says, "This is I don't want to listen to this." Quiet is a more effective way the quiet certainty of "I know the facts and we will get to the facts."
Chris Patterson 1:19:56You also make a point and this rings very loud here in New Zealand that particularly in the criminal jurisdiction, but the private bar has no right to look down on public defenders. Public defenders have no right to look down on the private bar. But both do, and we all lose.
Larry Pozner 1:20:15It's weird. There is a wonderful relationship. The private bar sometimes has more money to engage experts and to do novel things that we learn from as public defenders, the public defenders have day after day in court and learn, "What are the arguments? What are the methods that this judge appreciates?" We learn from each other. But let me say, in the United States, in order to be a good criminal defense lawyer, it is likely not necessary, but likely that you are a public defender first. It's where we begin. Why?
Chris Patterson 1:21:03Right, training ground.
Larry Pozner 1:21:05Right, we're in so when I went into private practice, and now I'm charging, and now a client is coming to me, I wanted to say, "What do you think? I only got good last week. Do you think that because I'm now charging money, I'm better than when I was free? No, all that's happened is, is you're paying more. In the United States, if you're rich, you could find a good lawyer, if you're poor, you can find a good lawyer. The middle class is the one who gets squeezed. They're not so poor that they can have a public defender, and they're not so rich they can afford a well-prepared lawyer."
Chris Patterson 1:21:49And the same applies here in New Zealand and Australia as well. And that gap between the middle class has been widening over the years. And it's a real, it's actually a real concern. I want to talk now you're talking about learning. You make the point, you know, be proud of yourself when you take the time to help another defense lawyer or in fact, any lawyer with the problem. Be proud when another lawyer takes the time to help you. The sharing of strengths is what distinguishes the criminal defense bar, but I think they can apply across the whole block.
Larry Pozner 1:22:25Oh, it does. But we see it more in criminal defense. In criminal defense, I could call you and now having never met you and say, "I must appear in the High Court in front of judge so and so. Could you I know you've done a trial in front of judge so and so or you've been there many times. Tell me about his or her personality?" And likely is not, you will take the time to tell me. You will not say to me, "Who in the world are you? There's nothing in this for me? Why would I take that?" You will do it. However, it's much more difficult to call a civil lawyer that we've never met and ask the same thing. Well,
Chris Patterson 1:23:11yeah, look, I tend to agree with you. I think with the criminal defense bar, whether it's some form of shared trauma that they all experience, yes, brings them together as different from the rather now artificial segregation of the civil commercial bar, we have often each other as seen as competitors, and don't have the interaction all the time, which is a shame. I mean, these things are corrosive to us being able to call ourselves a united professional.
Larry Pozner 1:23:49In the criminal defense community, it is increasingly common to get online and say, "Does anybody have a motion about? Has anybody dealt with this expert? Can anybody tell me?" and to get a response from the people who are in that group? That online group? Yep.
Chris Patterson 1:24:11Now that look, that's a really good point. I know from my colleagues that are in criminal defense chambers, I mean, they put so much value on their colleagues and sounding boards and sources of advice. Before we end up, I'll move on to what I see to be one of, you know, a very critical part of being a lawyer and the importance of it, and I'll just tell you, I want to talk about reputation. Just take a step back and say many years ago, I mean, I've got teenage sons, but I remember when they were young and I've set up the over the years I don't know if any of its ever sunk and I hope it does is that I've said there is a hierarchy of importance of things to keep in mind and, or to look after, should say. And I say to them, the first thing is your health. If you don't have your health, physical and mental, everything else will slide in life. You know, it's so important and and lawyers, we need to do more to look after our, our health, you know, I colleagues had a call last colleague a couple of years ago, through mental health, I lost another colleague who had a heart attack at a young age, you know, these are things that, you know, literally you lose, you know, good people you don't look after, right. But I also said to my boys, the second thing is reputation. If you don't have a good reputation, life is going to be really difficult for you. And I've certainly kept that in mind throughout my legal career that you know, reputation for integrity, is, if you've got a good reputation, practicing is less challenging. If you've got a bad reputation, I just don't know how you can continue. You make the point that you say your reputation for integrity will win you more motions than caselaw? Um, what do you say that
Larry Pozner 1:26:07one of the most frequent motions that we face in criminal and civil litigation is discovery, Your Honor, they have documents that they haven't given me. Yeah. And what happens is, we need to have the credibility of the court that we would not be complaining about it, unless it were true. That we're not always saying that, that we're not always complaining about our opposing counsel, so that we're taken seriously on the times we have to do it. And then part of that is that we cannot get into, "But they did it too." In other words, you're, I'm holding back documents because they held back documents, the best way to win is to play by the rules so that you can complain if somebody else isn't playing by the rules. But the next thing is, this is a career it's not a case that clients will come and go, You know what I must say, it's, it's dark, but I believe it if, if, if you fall over today and die, client will send nice flowers. And then tomorrow, they'll ask who's taking over the case? And do I have to pay to get them up to speed? And let's be honest, this is not a love affair between us and the clients, we serve them, but we're not them. We preserve our reputation, because winning for this client by decreasing our rep may help this client but it will hurt every client for the rest of our career. There is there is nothing unethical that is in the favor of the client ever. Now funny story. Long time ago, there was a an American lawyer, Thurmond Arnold, and he later had a at a law firm, famous Arnold and Porter in Washington, DC and Thurman Arnold goes to work for FDR, Franklin Delano Roosevelt, and as a trust buster. He gave this advice to his lawyers. He said if there comes a point in the case, when somebody must go to prison, let it be the client. Not do
Chris Patterson 1:28:37that is great advice. It is
Larry Pozner 1:28:39right. Yeah. And you see, and and but look what we're seeing in the United States. Right now. We are seeing lawyers whose licenses may be suspended. We're seeing lawyers who may be disbarred because of actions they took in behalf of their client, Donald Trump now, and I don't want to get into it politically. But I can tell you don't do things that risk your license.
Chris Patterson 1:29:06There isn't there will never be a client that important that you shouldn't destroy your career. Absolutely. By that night. I completely
Larry Pozner 1:29:13agree. Clients don't understand that. But but that's the truth. Two
Chris Patterson 1:29:17more points. And then we're there. You say be as quick to publicly praise honesty in your opponents as you are to scorn dishonesty.

(02:12):
Larry Pozner 1:29:27Yes. Yep. Why we're well, if sometimes, there is a surprise in discovery, it arrives late. And sometimes it's not their fault. Now I need a continuance. I am much more likely to get the continuance I said. "Look, your honor. This has arrived at the last moment. I have no doubt it was not held back. It's just the police were slow getting it to the prosecutor, and so the prosecutor only got it to me. But there's no question in my mind, your honor, that the prosecutor gave it to me as soon as they had it, but it's still late." It's a much more palatable argument than, "I am asking the court to find that the Crown Counsel held this back." See, I don't need that. Things happen in trial, mistakes are made. And so I want to separate out the bad faith from things happen. And I don't want to brand every thing that goes wrong as bad faith because it isn't. And then we make mistakes to the head suddenly, right. And sometimes we look up and we say, "Your Honor, my opponent, what you call my friend, my friend, I call it my first say, My friend has a point, Your Honor, I wish I'd have seen this. And I should have tendered it earlier. And I didn't tender it earlier. But it's because I didn't recognize it. I hadn't seen it. I know it, my credibility on I didn't hold it back intentionally measured against my credibility over the entire course of my career is what matters. So a judge says, 'I agree,' you know, 'we're going to find a solution, but it will not be a punitive solution.' Take responsibility when we screw up."
Chris Patterson 1:31:24Yep, look at the bigger picture there that isn't there's always a bigger picture. You know, this is, Larry, this is a good point. I I've made lots of mistakes, I will say that in this recording beta arm, when I look back on it, some of them are just makes me shudder. But one of the mistakes that I made once an opposing counsel took real advantage of okay, and they contributed to the mistake, okay, so they kind of set the mistake up, and, and of course, I hit on it, you know, I made the mistake as well, but it, you're never going to forget that they that they took advantage of it or thrown and that's where the reputation aspect comes into it. So I've always thought, you know, I've always taken an approach that if if you've got a colleague who made some make some mistake, you know, just recognize it and and then do what you can to say, 'Hey, we all do it.' Because you know, next week, I might be the one making the mistake, you know,
Larry Pozner 1:32:23exactly. And, and especially in criminal defense, where we're meeting the same opponents over and over, which may not happen in civil. It is important we have a relationship that endures for years needn't be a friendship, but it has to be a respectful relationship, because they're going to be scrubs. And it and this profession is very difficult, very emotional, is so much easier if we can get on the phone and figure out between the two of us. 'Let's straighten this out. So that I don't need the judge to referee it.'
Chris Patterson 1:32:57Yeah, no, good. wise, very wise counsel and advice, Larry, last one. Lawyers who turn on solid results day after day are more admired than lawyers who turn and dazzling results every now and then, every now and again. That's so true.
Larry Pozner 1:33:15Well, that's right. Yeah, you pick up the file, and you do the best you can. That's why I don't like lawyers who take cases for publicity. Because if you've taken the case for publicity, you will make decisions on tactics designed to get you publicity. What you want is to get a good result, followed by another good result, followed by another good result quietly, year after year, you want to do good work, not in the famous cases. But in all the cases, we can't save it up and say I'm really going to work hard on this case, because it has high visibility. What we want to do is we want to say to our clients and our opponents. If it's in my chambers, I will work on it diligently. That's all you need to know is if they hired somebody else, I will not follow it in the newspapers, not my concern is not my headache. But if it's if I have said yes to the representation, I will do solid work every time. Yep, that
Chris Patterson 1:34:26consistency. And I think also being prepared to learn and gradual incremental improvement. So that you set standards for yourself to say, you know, I'm not the same lawyer that I was five years 1020 30 years ago, you know, I'm working on being the best lawyer that I can be today. And I'll continue doing that. And look, we are a service provision profession. We're here to serve our clients, the community in the court. Word gets around you know, people say Does you know, greatest
Larry Pozner 1:35:01advertising we have is a client on the street, who says I hired him. That's not the billboards, you know, that not flashy plaques on the wall. The greatest advertising here are happy clients who say, or, you know, sometimes unhappy clients, they say, 'I wish I'd have never needed a lawyer. But as long as I had to have a lawyer, I got a lawyer who fought for me.' Yeah.
Chris Patterson 1:35:26And that confidence that clients have in you is just essential. And, and, and sometimes, most of the time, you know it, they'll come to you and it's it's probably unearned, you know, they're coming to you on a referral. And you've got to demonstrate to them that the confidence is well founded and that that's quite a duty it's quite a an onus or obligation to hold
Larry Pozner 1:35:53yes and but they can tell who cares? Yeah, they can sense it yet
Chris Patterson 1:35:57but that but it to many respects, that's what makes practicing the law such a privilege and, and why it is a calling. Very positive. Thank you so much for coming all the way down under from the sunny state of Hawaii and sometimes Colorado. I know you're here for a workshop this weekend. That's been brought by Metro chambers, which is where a prominent defense chambers here and an Auckland there's a little plug for them there. Okay, but we are delighted to have you here. I mean, the reality is that to be able to obtain and hear some of your wisdom. We have travel, and it's a long way to go. It takes a lot of time cost a lot of money, but you're here. It's kind of like the mountain has come to Muhammad, but
Larry Pozner 1:36:44But what an honor. When Quinton asked me, and I thought you really quit and you're going to arrange for me to come to New Zealand, you'll never pull it off. And yet he did. And I was talking to the defense lawyer Association of New Zealand in Wellington last weekend. And now I'm I'm here in Auckland, and it's been a privilege in a memory of my lifetime.
Chris Patterson 1:37:08And I fantasy and this is this isn't your first trip though to New Zealand does it? You were here about three
Larry Pozner 1:37:12years it was here with my children. We had a wonderful time, right. It's it's a good distance. Yeah. Yeah. Sorry. Thank
Chris Patterson 1:37:21you so much. Thank you for coming down. Thank you for everything you've done. And, and also, thank you for writing your book. It's, it's, it's a fantastic resource. Thank you. Thank you. Thank you for tuning in and listening to this episode of the law downunder podcast. You're welcome to join in on the discussion via my podcast page, which you can access@pearson.co.nz That's a pa t t e r s o n.co.in Zed. Thanks for supporting the podcast and tune in again for more on the law, its application and the future of the law here down under .

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E30 Cross Examination - With Larry Pozner

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}E30 Cross Examination - With Larry Pozner