By Hon. (Ret.) Ken E. Adair 
Law School Doesn’t Teach You How to Talk to Juries
Video Transcribed: When I first became a district judge before I got sworn in, I went to the November judicial conference. I was sworn in, in January. So I go to this judicial conference and I knew a lot of the judges, I’d practiced all over the state of Oklahoma. And a lot of them were glad to see me. And a lot of them were surprised to see me.
But this one judge put his arm around me and he said, “Hey Kenny.” And he says, “Let me give you some advice.” And one of the things he told me, he says … many things he told me in that little talk, but he said, “You’ll be amazed at what passes for the practice of law.” And I thought I was a mediocre lawyer in that I thought a lot of lawyers were better than me, by experience and by skill, but a lot of lawyers were not as good as me.
And I also felt like I was kind of, if I hadn’t been as good as I was, I don’t think I should have been practicing law. So I had a perspective based on my own experiences, in my own self-perception.
But I used to think I was good at voir dire, and I was terrible at voir dire. I wasn’t comfortable with direct examination. I was terrified of cross-examination. I had that notion that most lawyers have, especially when they come out of law school, having not been taught to try a jury trial, by the way. Law school does not teach you to talk to juries. It doesn’t teach you how to get in touch with the truth and how to convey the truth in a way that it will be embraced and received and believed by a jury.
But I was terrified of cross-examination, because I had watched too much TV and watched too many movies. And when I was growing up, Perry Mason was on. And in Perry Mason, there was always this aha moment at the end of the trial when somebody stood up and confessed.
And I believe that cross-examination was about pigeonholing somebody in a corner, painting them into a corner. And then having an aha moment where you get to compile and confront the jury with the truth with this witness.
There’s an old saying it’s like trying to sew a button on a custard pie. You think you’re going to get it, you just never quite get there. Witnesses can always slither out of the truth and you never get them pigeonholed.
And so in the course of going to the trial lawyer college and being mentored by one of my best friends and favorite lawyers, David Smith, I learned what was called storybook cross. You have one question, one fact. And what he said to me was, he said, “Think of Mary had a little lamb. And this is a silly little thing, but it’s not silly at all. If you’ll just try it one time.” And if you ask yes or no questions on cross-examination, you can do this. Mary had a little lamb, right? Yes. And its fleece was white as snow. Yes.
Now remember the jury knows the story. Everybody knows the story of Mary had a little lamb, but the jury already knows the story. You talked a little bit about it in voir dire. You told them what the story was going to be in your opening statement. You just laid it out. This is the story.
And then in your case in chief, if you’re the plaintiff, you got to put the case out there. But in cross-examination is telling your story through their witnesses. And you know what the truth is, and they know what the truth is.
And after I learned the storybook cross technique, I used it immediately. And the first time I ever used it, I used it in a case where they were trying to put my client in prison for 12 years and revoke his probation, and the facts were horrible.
And I had to cross-examine a police officer who was testifying that my client had violated the rules of his probation. So I knew what the truth was. I’m talking to my client. I knew what the truth was, and the officer knew what the truth was.
And so you would ask the question, you tell your story, you tell your truth through the opposing witness. Mary had a little lamb, right? Of course. Yes. Its fleece was white as snow, isn’t it? Yes. And everywhere that Mary went, that lamb was sure to go, right? Well, yes. And we all know the story.
And I tell people, when I do this exercise with them on the last question, it followed her to school one day. I want you to just say no with all the sincerity that you can. And the truth is nobody can, they’re like, “No.” Or, “No.” They don’t say it with the sincerity that they do when they answer it truthfully.
And so storybook cross works. You ask one question, you get one answer, and it’s a yes or no question. Isn’t that true? That’s true. Correct? Right? That’s a question. So you tell your story.
And when they say, no, it doesn’t matter if they say no or not, because everybody’s heard the story, everybody knows the story. Maybe they’re not as familiar with the story as Mary had a little lamb, but if you did your job in voir dire and you did your job in the opening, and you did your job in your direct or direct examination, and the presentation of your case in chief, cross-examination becomes easy. It was one of the things I was most afraid of.
And by the time I was done, it’s my favorite thing to do. And I don’t go around trying to set traps for witnesses. I just tell them my story, my client’s truth through the opposing witnesses using storybook cross.
I hope this has been a little bit helpful to you. I hope it didn’t seem silly, because it’s not, it works. And I look forward to seeing you again. Thank you very much.
You’re watching this video, so you already know the value of a good jury trial strategy, but did you know that you don’t have to go at this alone? I’m former judge Ken Adair and when I retired from the bench, I returned to the trenches, to the practice of law, to jury trials, which is what I love and it’s what I do. I provide first chair and co-counsel services for lawyers putting on high stakes Oklahoma jury trials. Go to trial.win to learn more.
