Just after law school, I remember walking down the road telling a fellow graduate how I was going to move to Montana and open my own practice. He asked the reasonable question, “How do you expect to make any money when you don’t know that many people up there, and you haven’t handled your first case?” Armed with more confidence than I was entitled to have, I responded, “It’s dark and cold in Montana a lot of the year. People love to drink, and there’s no public transit. I bet I can make a living trying DUI cases.” It didn’t take long for my lack of experience to catch up to my cocky attitude.

People, even in Montana, don’t like the fact that others are drinking and driving, even if there aren’t any public transit options. Jurors have lost faith in our professionalism and expect tricks and loopholes from those of us who represent DUI clients. Then there are the jurors who expect us to prove our client’s innocence rather than hold the government to its heavy burden of proving our client’s guilt. Gone are the days where we can simply swagger into the courtroom, put on a good show and expect to sway a jury on sheer charisma alone.

While the tide may be turning back to skepticism of law enforcement and the government (particularly in more rural states like Montana and Oklahoma), we cannot count on that potential skepticism to carry our clients to not-guilty verdicts. We must be organized in our understanding of the facts, prepared to affirmatively tell our client’s story and ready to win our cases with constructive cross-examination. The “Chapter Method” provides the structure through which we can accomplish those goals and give our clients the best chance to hear that sometimes elusive two-word verdict, “Not Guilty.”

 

THE CHAPTER METHOD ISN’T JUST FOR CROSS-EXAMINATION

The “Chapter Method,” developed by Roger Dodd and Larry Pozner,¹ was originally applied only to cross-examination and provided a way to break down a specific cross-examination into a series of self-contained chapters. Much like the chapters in a children’s book, each chapter in a cross-examination tells a portion of the story, with all the chapters coming together to tell the whole story. What I learned, though, is the Chapter Method has applications beyond cross-examination. We can utilize the Chapter Method to break down our cases into bite-sized chunks that help us focus on the relevant and important facts and issues during trial preparation and help a jury easily understand and appreciate our client’s case at trial.

 

‘JUST THE FACTS, MA’AM’

While there is some dispute whether Joe Friday ever uttered the famous line, “Just the facts, ma’am,”²there is no doubt facts can drive the outcome of our cases. Particularly in this day and age of hyper-partisan politics and jurors who will not take our conclusions as truth, we must understand the unique facts of our cases. We cannot make the mistake of assuming that because we’ve tried 10, 50 or 200 DUI trials we’ve done “enough” DUI cases to skim the facts of a particular case the day before trial. We have to remember each case is unique, and we have to be ready to communicate those unique facts to a jury. To do so, we sort the relevant from the irrelevant and organize the relevant facts into boxes that will eventually become the “chapters” of our case (and our cross-examination).

From the minute our client walks in (or calls or Zooms in these days), we begin gathering facts that may or may not help us at trial. We must listen for the thread of a narrative amongst the disjointed facts our clients invariably lay on our desk. In a recent case, I had a client who was stopped in a small, rural town for rolling through a stop sign. The client almost immediately admitted to the officer he’d had a number of drinks throughout the afternoon. The officer saw “bloodshot and watery eyes.” Without much other investigation, the officer determined my client was impaired and arrested him.

When I dug deeper into the events of that afternoon, the client revealed a number of positive facts that allowed me to craft a different narrative than I assumed the prosecution would present. The client left home before sunrise to travel many hours for a softball tournament. His team had done well, and they were on the field, out in the heat and sun most of the day. Though he and his team were camping at the field, he was unfamiliar with the area (and the municipal park in which he was stopped) because they only played one tournament a year in this particular town. He was arrested when he went out to get dinner for the team.

In addition to understanding the facts as presented by our client, favorable witnesses, government witnesses and objective evidence, we must know the policies and procedures required of the officers in our jurisdictions. Since almost every DUI case involves the administration of standardized field sobriety tests (SFSTs), every lawyer taking DUI cases should be familiar with the administration and assessment of SFSTs as taught by the National Highway Transportation Safety Administration. Without an understanding of the policies and procedures that control our officers’ actions and without understanding how the officer should administer the SFSTs, we will miss opportunities to show how a good officer completes an investigation and show the officer in our particular case did not live up to the high standard they will preach during the direct examination.

 

EMBRACE THE NARRATIVE APPROACH

After we have a good handle on the facts and we have used the Chapter Method to sort the relevant from the irrelevant, we need to develop our client’s narrative and be prepared to communicate that narrative to our jury. Our client’s narrative is our client’s story – it is our telling of the facts that (hopefully) leads the jury to our desired outcome. Our client’s narrative is “the why that helps explain the what.”

We must organize the disjointed facts lifted from our client interview(s), the police report and the video into a narrative theory that is understandable, relatable and provides answers to the following questions:

• Why should the jury care about our client’s case?
• Why should the jury side with our client?
• How can the jury help our client?

To aid us in providing these answers and most efficiently presenting our client’s narrative, we develop a theory of the case and a related theme or themes. Our “theory of the case” is the one-sentence version of our client’s narrative. It is the elevator pitch – a short, easily understood statement of our client’s position that justifies our client’s desired outcome. It is the thread that unifies our voir dire, opening statement, directs, crosses and closing argument. Though it is not a legal statement, our theory of the case takes into consideration what facts are legally admissible and how we can use those facts to support our legal arguments. In DUI cases, our theory of the case almost always begins the same: “Ladies and gentlemen of the jury, Mr. Marshall is not guilty because …”

Themes support our theory of the case and help regularly remind the jury of our client’s narrative. A “theme” is a recurring thought, idea or catchphrase that summarizes and reinforces our theory of the case. Our theme (or themes) must embrace our theory of the case and the word selections we have chosen to communicate our client’s narrative. For instance, “scared, not impaired” was my theme in a recent DUI case in which my young, female client’s poor driving and poor field sobriety testing resulted from an aggressive officer who tailed her closely and intimidated her at the roadside. In another case in which my client’s apparent impairment was due to a head injury suffered in a fight just before he left the bar, I used the theme “punch drunk.” And in my most recent DUI trial, I used the simple theme of “disconnect” as a refrain to explain the obvious disparity between my client’s drinking and roadside behavior and the breath test on which the state hoped to hang my client.

By aligning our presentation with our theory of the case and using our theme(s) early and often, we reinforce our theory of the case and provide the jury with a narrative framework in which to integrate the facts we develop on cross-examination.

 

VOIR DIRE AND OPENING PROVIDE THE STRUCTURE

From the minute we begin speaking to a jury, we have an opportunity to communicate our client’s narrative, theory of the case and themes. To do so, we once again use the Chapter Method. This approach allows us to take the individual chapters we have created and sequence them in an appropriate and compelling order. Because we have broken down our case into chapters, we retain the flexibility to dynamically adjust our sequencing as needed. We also have the ability to reuse chapters that come up over and over again (i.e., chapters on reasonable doubt or other recurring issues in our DUI cases).

Facts need a framework to be memorable; facts standing alone do not drive the retention or emotion we need jurors to carry into the jury room. For instance, during the voir dire in my softball case, I started by asking how far people had to drive just to get to the courthouse. In Montana, it is not unusual for jurors to have to leave their house at 6 a.m. to reach the courthouse by 8 a.m., particularly if there is a snowstorm. We talked about the different activities in which the jurors participated – softball, farming, hunting and other activities that had them outside in the heat and sun for hours every day. While on the surface the chapters of these questions didn’t have anything to do with a DUI, they provided a framework in which to integrate all the positive facts I learned in my preparation.

In my opening, I was able to expand on all those chapters and flesh out my client’s narrative. While I sequenced the chapters in a bit different way than I had in my voir dire, I reused those chapters and had the opportunity to build my client’s story from start to finish. I was able to provide a more substantial framework in which the jurors could understand the context of the questions I had earlier asked about their drive times and hobbies. By using the Chapter Method to organize my client’s story in voir dire and my opening, I gave the jury a structure in which to integrate all the facts that would come out during my cross-examination of the officer.

 

CROSS-EXAMINATION PROVIDES FACTS

Our role in cross-examination is to present and teach facts, not conclusions. Facts trump conclusions, interpretations, opinions, generalities and legalisms. Facts persuade a jury who is open to our arguments and our client’s requests. Facts allow a juror who has already made up their mind to “backfill” the decision they have already made. Facts are for cross; conclusions are for closing.

DUI cases are particularly unique because often, the only witness through whom we can tell our client’s story is the state’s witness – a law enforcement officer who arrested our client and who has been trained to testify in a way that is harmful to our client’s case. We, therefore, need to arm ourselves to tell our client’s story through this adversarial witness. The contemporary approach of constructive cross-examination coupled with the traditional approach of destructive cross-examination allows us to affirmatively tell our client’s story and maintain the focus on our client’s story – our client’s theory of the case.

 

TEACHING OUR CLIENT’S CASE THROUGH DESTRUCTIVE AND CONSTRUCTIVE CROSS-EXAMINATION

Destructive cross-examination is the traditional approach to questioning an adversarial witness and the style with which most are familiar. Its purpose is to attack the opposing theory or the opposing witness, and it almost universally appeals to those of us who try criminal cases and DUIs. The downside to such an approach is that, as with a Coke advertisement that includes references to Pepsi, destructive cross-examination keeps the focus on the state’s theory of the case. Even when we are scoring points in a destructive cross-examination, we are focusing the jury’s attention on the narrative constructed by the state.

On the other hand, the use of constructive cross-examination allows us to structure cross-examinations in a way that highlights our client’s story and advances our client’s theory of the case. By eliciting facts that support our client’s theory of the case through the officer, we can teach the jury in a way that gives more worth to each fact, presents the material in a more efficient manner and keeps the jury focused on our client’s theory throughout the cross-examination.

In the softball case, my client’s interactions with the officer after he was stopped supported the theory that my client was tired and unfamiliar with the area but not impaired. I was, therefore, able to constructively focus on these facts during the first portion of the officer’s cross. There was no need to come out swinging and make the officer defensive. I needed him to concede facts that supported our theory. To do that, I used constructive cross-examination to force the officer to “build up” my client and my client’s interactions on the evening of his arrest.

During the first few chapters of cross, I was able to establish (through the officer) that my client wasn’t from the area, he had traveled a great distance to the field, and it was late in the day. I then used a series of chapters to constructively highlight many of my client’s behaviors that showed my client was not impaired.

• Officer, when you walked up to my client’s door, he had already rolled down the window?
  • He was ready to speak to you?
  • He was not distracted?
• When you spoke to my client, he answered all our questions?
  • He answered without hesitation?
  • He answered without slurring his words?
  • He answered in a friendly tone?
• When you asked him for his license and registration, he got them out of his glove box?
  • He reached over and opened the glove box without fumbling?
  • He quickly shuffled through the papers in the glovebox to retrieve his insurance card?
  • He handed you just the insurance card?
  • He didn’t hand you a stack of papers?
    • You’ve seen folks do that?
    • You’ve seen drunk folks do that?
    • And you’ve seen drunk folks hand you the wrong piece of paper?
  • He didn’t hand you a stack of papers?
  • He handed you just what you asked for?

Even where an officer may have received more training, corrected bad habits and learned to testify more persuasively in the time since they arrested our client, the use of constructive cross-examination provides an opportunity to use the officer’s newfound talents to our client’s advantage. In that same softball case, I used other constructive chapters to get the officer to establish the foundation with which we would destructively demonstrate his failure to comply with the proper procedures:

• Officer, you’ve received extensive training on the SFSTs?
  • Over 40 hours at the academy?
  • Another five hours every two years since you graduated?
• In the time since you arrested my client, you’ve taken additional, advanced training?
• That training has made you an educated officer? A diligent officer?
• As an educated and diligent officer, you are aware of the importance of following the standardized administration procedures of the SFSTs?
  • You are aware that an officer’s failure to follow the standardized administration procedures can compromise the validity of any conclusions?
    • As an educated and diligent officer, you do not want to compromise the validity of our conclusions?
    • As an educated and diligent officer, you would not want to mislead this court?
    • As an educated and diligent officer, you would not want to mislead this jury?

These types of questions are safe because an officer will almost universally agree with the discrete fact enclosed in each question. An officer who disagrees with any of the above questions loses credibility with the judge and jury. Therefore, no matter how the officer responds, it is a win for our client.

After allowing the officer to educate the jury on good police procedures (which took many more chapters than the above excerpt) through constructive cross, I then attacked him on each of his failures in properly administering and assessing the SFSTs through destructive cross chapters. I walked him through each of the SFSTs and each of the ways in which the officer’s administration of the SFSTs did not align with the standardized requirements and those of an “educated and diligent officer.” In that way, the two approaches to cross-examination support each other and allowed me to use the officer’s “superior” knowledge of police procedure to his disadvantage and my client’s advantage.

 

SEQUENCING CROSS-EXAMINATION WITH THE CHAPTER METHOD

Almost every direct examination of an officer follows the same, chronological arc. It begins with the officer’s initial observations that led to the investigation and concludes with the arrest of our client for driving while impaired. In almost every case, this sequence of events does not support our client’s theory of the case.

While we’ve all heard the admonition, “Don’t chase the direct,” very rarely does the one giving the admonition suggest a good starting point for our cross. Under the constructive cross-examination approach, the answer is relatively straightforward – begin with a chapter, a series of questions, that sets up our client’s narrative and immediately focuses the fact finder on our client’s theory of the case. The Chapter Method allows us flexibility in sequencing our cross-examination, just as it does during our voir dire and opening.

While there are cases in which we need to attack the officer right out of the gate, don’t let that be your default approach. Allow yourself to consider that a less aggressive, less adversarial and less destructive path may be more beneficial to your client. You have to keep in mind that many of our younger jurors do not want to see the “fight” that characterized courtrooms of the past. They want to be presented facts without the showiness. For those jurors, a conversation is easier to follow than an argument. And a less adversarial approach is also less likely to draw an objection early in the cross.

 

LISTEN FOR OPPORTUNITIES TO ENHANCE THE NARRATIVE

Listening is a learned skill. How many of us have attempted to multitask only to respond to the one we claim to love with a variation on, “Of course I was listening … wait, what did you say again?” This same inability to multitask during cross-examination presents a lost opportunity for those lawyers who are not prepared before they step to the podium. When we have prepared our cross-examination as a persuasive narrative broken down into individualized chapters, we are free to listen during direct and cross-examination to make use of the officer’s own testimony.

Because we know the same fact or the same phrase elicited from the officer on cross will have more impact than that fact or phrase asserted during closing, we must be alert to the opportunities presented whenever the officer is talking. By actively listening to the officer’s testimony (rather than loading our next question or searching for the record cite that will support our next impeachment), we can loop the officer’s testimony whenever it coincides with our client’s theory of the case. By looping the officer’s testimony – intentionally reusing the officer’s words and phrases that are supportive of our client’s theory – we continue our client’s narrative and add emphasis and focus while avoiding objections and decreasing the risk the officer will challenge our word choice.³

Late in the cross of my officer in the softball case, he compared the breath test machine to a DVD player. Since my theory focused on the disconnect between my client’s performance on the video and the result produced by the breath test, I used the officer’s DVD analogy to minimize the alleged scientific accuracy and reliability of the breath test machine. In contrast to the officer’s reference to the breath test machine as a piece of “scientific equipment,” I referred to it as “the DVD player.” Because he had created the analogy, the officer gave me permission to use the phrase “the DVD player” during the rest of my cross-examination and in closing. With his analogy in hand, I closed with the following questions designed to empower the jury during deliberations:

• Officer, when a DVD player does not work, no one is arrested?
• When a DVD player does not work, no one goes on trial?
• When a DVD player does not work, no one goes to jail?

 

CONCLUSIONS ARE FOR CLOSING

It is naïve to believe our cross-examination will be so effective that the officer suddenly abandons their conclusion that our client was impaired. That only happens on television. In real life, those cases do not make it to trial and those officers who do admit they shouldn’t have arrested our client do not remain on the force for long. But even though we may never see an officer change their conclusion on cross, we can use the Chapter Method and constructive cross-examination to accumulate admissions that are supportive of our client’s narrative and our client’s theory of the case. By mining for admissions during our cross-examination, we can build a foundation for our closing argument.

During closing, no one gets to argue with our conclusions. The prosecutor can object, but most judges will respond that it’s called “closing argument” for a reason. And if we did our job well on cross-examination, we have a stack of admitted facts to back up our argument. We integrate those facts into the chapters we established early in the trial and argue persuasively that the testimony of the state’s witnesses actually supports our theory of the case. From the other side, we can argue the testimony of the state’s witnesses actually undermines the state’s conclusions of impairment. Through it all, the Chapter Method provides the organization in which we frame our arguments and integrate the facts that came out during trial.

 

ABOUT THE AUTHOR

Matt Dodd has been in the courtroom for as long as he can remember. He lives in Montana, where he handles criminal, civil and family cases and enjoys teaching judges and juries why they should help his clients. Mr. Dodd lectures and teaches nationwide, and he is coauthor of the book Cross-Examination for Depositions.

 

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1. Dodd, Roger and Pozner, Larry, “Cross-Examination: Science and Techniques,” Lexis-Nexis (1993), www.lexisnexis.com/shop/poznerdodd/default.page.
2. See, e.g., MeTV.com, Sgt. Joe Friday never actually said ''Just the facts, ma'am'' on Dragnet, available at: www.metv.com/stories/sgt-joe-friday-never-actually-said-just-the-facts-maam-on-dragnet, last viewed May 29, 2021, and Schmoop.com, “Just the facts, ma’am,” www.shmoop.com/quotes/just-the-facts-maam.html, last viewed May 29, 2021.
3. Dodd, Roger and Pozner, Larry, “Cross-Examination: Science and Techniques,” Lexis-Nexis (1993), www.lexisnexis.com/shop/poznerdodd/default.page.