June 01, 2019 Feature

The Theory of the Case

James W. McElhaney (originally published in Fall 1979)

View downloadable PDF of article.

The young lawyer was flushed with victory. The cross-examination—his first—was going marvelously. The witness was an important one for the other side, and the young lawyer’s senior partner let him take the witness on cross-examination.

The high point for the young lawyer was his impeachment of the witness with a prior inconsistent statement. First, the witness was committed irrevocably to his direct examination statement, which was inconsistent with his deposition. It was not until the witness himself unwittingly cut off each avenue of escape that the young lawyer closed the trap and confronted the witness with the inconsistent deposition.

That was the crushing hammer blow, and it is easy to imagine the young lawyer’s surprise on seeing the tight-lipped expression on the face of the senior partner.

Premium Content For:
  • Litigation Section
Join - Now