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September 01, 2014

Sidebar: Going Too Far with Witnesses

Kenneth P. Nolan

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One of my first trials, I cross-examined a medical expert who was celebrated for his sagacity and skill. He certainly looked and sounded like a distinguished movie star. Those more accomplished advised me to be cautious. I sniped at the vulnerable parts of his opinion; the doctor agreed with a smile or shrug, and I scampered to my seat somewhat relieved and emboldened. On redirect, the defense probed a bit more, but nothing too devastating. “Mr. Nolan, anything else?” the judge asked. I hesitated, rose slowly, and, voice filled with fury, attacked: “You’ll agree, won’t you, Doctor, that Mr. Montez is disabled from his job as a construction worker?”

The doctor paused—his eyebrows probably arched—turned to the jury and replied in a confident tone: “No, I don’t. And, Mr. Nolan, let me tell you why. . . .” I know all too well the feeling of stupidity, yet this was the first time I experienced it in a courtroom. As the good doctor left the stand, he glanced at me and shook his head, a pointed indication that I should have quit while ahead. Maybe the case settled; I may have even won. But I’ll never forget my arrogance in trying to do too much with a savvy, polished expert.

Know the Limits

You can memorize the file, learn to ask piercing questions, even write a compelling brief, but most difficult, especially for young lawyers, is to know limits—how far to probe, how much to ask, when to stop, sit down, and shut up.

Those who have not yet reached the age of 40 are all winners, or so they have been told by parents, teachers, coaches. Articulate and determined, they have persistently succeeded through argument and complaint. They have honed this skill on parents, like me, whose once steel vertebrae gradually turned gelatinous until we finally surrendered the gold credit card and prayed that our adorable child’s spending didn’t exceed Congress’s.

And this is what I notice whenever a bright, intense 30-something sits opposite in a courtroom or conference room. Their neat notes are filled with ideas gleaned from Facebook, Twitter, and, on occasion, the file. Their strategy, which worked so well on their pathetic parents, is the same—to badger and accuse by asking every question, exposing every flaw, never stopping until the witness breaks down and howls: “Yes, yes. It was me. I’m Colonel Mustard and I killed him in the billiard room with the candlestick.”

As is the predilection of the scoundrel, a young man’s desire for an expensive leather coat overruled common sense. How to achieve such an objective was simple. You carry a duffle bag into a Manhattan department store and then stuff the jacket into the bag and stroll out to disappear among the disgruntled throngs that crowd every sidewalk on that callous island. Alas, technology in the form of hundreds of cameras has made such an undertaking somewhat precarious. Within a block of exiting, store detectives apprehended the thief and retrieved the ever-so-soft leather garment.

At the criminal trial, a young defense attorney cross-examined the store detective, an earnest, dedicated soul whose demeanor and voice told of limited formal education, working-class roots, yet sincerity and honesty. This subtlety is often lost on those who think an apple is a computer rather than a fruit. Hence, the defense attorney battered the detective’s narrative with myriad questions and, on occasion, was successful. Instead of being content with incremental progress, the attorney continued the attack by questioning the young man’s character. She hounded him on driving 70 miles per hour in a 30-mile-per-hour zone, delinquent child support payments, and other blemishes that had nothing to do with the crime.

Yes, the detective murmured, the mother of my daughter took me to court because I was behind on child support, but I had money problems and am now up to date. Yes, I used to drive fast, but that was when I was in my early 20s. I haven’t had a speeding ticket in 10 years.

The defense attorney’s assault on this hard-working stiff turned me sympathetic toward the prosecution and livid with the defense. If you didn’t swipe the jacket, this detective—trying to grab a slice of the American dream—would have been spared the embarrassment of incidents long past and much regretted. I was relieved I wasn’t the one being cross-examined because the inventory of my transgressions would have kept me on the stand for a week. The jury, full of common sense, returned a guilty verdict in an hour.

This is what I usually encounter—the young trying to do too much, going too far, believing that one who missed a few child support payments is wicked bad, never to be believed. Those who always carry reading glasses realize that every life is complicated, filled with failure and disappointment. We have learned to forgive those sinners who atone and make good like the store detective.

Pushing Away a Witness

A company hired a consultant to review and evaluate its training and safety procedures. As part of this process, an online survey was formulated to obtain input from the company’s employees. This survey was written by another expert whose proficiency was in creating the questions and posting the anonymous survey online. The survey’s results were a focus of the deposition of the consultant because the answers and comments generated by the employees were critical of the company and its safety practices. The plaintiff wished to trumpet the critical comments; the defendant wanted to denigrate their truthfulness.

It was a given that the consultant did not create the survey, nor was she tech-savvy enough to have any knowledge of how the survey was posted. That information was limited to employees with a company email address. Once the employee was admitted to the site, he could answer any question, even those unrelated to his job. For example, one who maintained the product could answer the section directed at those who designed the product. There was no way to confirm the veracity of the answers. The purpose, however, was to obtain a general sense of how employees viewed the company. Since the survey was anonymous, the hope was that the employees would respond honestly.

“Now, Mr. Nolan asked you about the statement about the lack of available replacement parts. You don’t know who posted that, do you? Just because the one who completed the questionnaire said he was a mechanic, it doesn’t mean he was, does it? He could have been someone who was turned down for a raise, correct? He could have been a secretary or the fellow who works in the company cafeteria? So we don’t know if any of these answers in this survey are accurate, do we?”

Then stop. You have created a question about the validity of the survey. Instead, the young lawyer wanted more. He continued with a stream of accusations: The survey questions were poorly phrased; nonemployees could bypass the security system and create havoc; the participation rate was too low; disgruntled employees are more likely to answer than those satisfied with their jobs; you did nothing to evaluate the accuracy of the survey results; the survey was, essentially, worthless.

The consultant’s back stiffened. “I chose the most qualified person. He’s experienced, dedicated, and honest. . . . The results are accurate. . . . I have no idea how all this computer stuff works, but he told me that only employees could answer the survey, and I believe him. . . . He said the participation and results were better than most other surveys. . . . He has a Ph.D. The best, he’s the best.”

What else could the consultant do? Testify that the people she hired were incompetent fools? Agree that the money she received was wasted? By trying to win the case, the attorney turned the consultant from a witness you could manipulate into an advocate for the plaintiff. Once you attack her work and people, she must defend. No one will concede, “You’re right, I’m a fraud and so are all the people I hired.”

During your depo or trial prep, put yourself in the witness’s position. If I was asked whether the survey had adequate safeguards, what would I say? Yes? No? Maybe? If the qualifications of the person I hired were ridiculed, would I agree or disagree? The answers are obvious.

When questioning, dance around, toss a question or two. “You use this survey person before?” “How many times?” “How did you find him?” Stuff like that will provide insight. The answer “He’s OK” is different than “Love the guy, very professional, intelligent.” Always probe first. If there’s resistance, back off. Rare that the cross of one witness determines victory. Usually, it’s a steady accumulation of information that leads to a champagne toast.

We’ve all done it—gone too far, tried to hit the home run with a witness whose testimony can never bring victory. Youth is beauty and optimism, sparkling sunrises and days of wondrous promise. It is also inexperience and error. How I wish I was back in that courtroom crossing that doctor again.

Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, Rye Brook, New York, and is the author of A Streetwise Guide to Litigation (ABA 2013).