Misdirect, Then Pounce: Don't always let witnesses know where you are taking themAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 85, No. 8 (AUGUST 1999), pp. 78-79Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840918 .

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LITIGATION

Misdirect, Then Pounce

Don't always let witnesses know where you are taking them BY JAMES W. McELHANEY

Angus was catching up on his correspondence, and two letters got him thinking about how the most direct route is not always the best one to reach your destination.

Dear Angus: You always say we should

learn as much about the witness as we can before taking his deposition. That seems to have worked pretty well for me so far.

But now I'm worried. Fm de fending an employer in an age dis crimination case, and I've gotten some interesting information about the plaintiff, whose deposition is scheduled for next month.

It turns out the plaintiff has brought several other lawsuits in the past, each one against a former employer?but none for age dis crimination.

The lawyers who defended his other suits all tell me the plaintiff is a pathological liar for whom the truth is an occasional convenience. I have been able to get transcripts of his testimony from his other cases, and they might turn out to be a source of impeachment material.

But since the other cases didn't have anything to do with age dis crimination, I don't know how

much help his former testimony will be. So Fm wondering: Is there anything I can do to keep him from lying in the first place?

?Partly Prepared in Portland

Dear Partly: An ounce of prevention is sup

posed to be worth a pound of cure, but dealing with the other side's lies may be an exception to the rule. Exposing a deliberate falsehood can have a devastating effect on your opponent's case?and you may have

James W. McElhaney is Joseph C. Hostetler Professor of Trial Prac tice and Advocacy at Case Western

Reserve University School of Law in Cleveland. He is a senior editor and columnist for Litigation, the jour nal of the aba Section of Litigation.

Because the chances are that neither the plaintiff nor his present lawyer knows you have those transcripts, you are in a posi tion to look for all kinds of patterns

?both consistencies m

in the other cases^^^^Xjlj^^^H

supervisors. When ym^^^e^^f|H his deposition, ask lots of op^S^MH ed questions about those same-^^ ics as they apply to this case.

People follow patterns. If the plaintiff really makes up evidence, you may find him creating the same situations again. If they worked before, he'll probably try to make them work one more time.

I probably would not confront him with his former testimony in the deposition, since it would give him until trial?with the help of his lawyer?to work out a suitable escape. Save the past testimony for trial.

How to keep him from lying in the first place is a different ques tion. Typically it's something you try when it will be easier to prevent the false statement than it will be to expose it later on.

One approach is to try a little creative misdirection. The idea is to let the witness think that he is at risk for something that had not occurred to him until you started asking questions about it.

Anxious to protect himself from

this new line ofattack, he closes a door you want shut.

Here is an example: Fred Weisman from Weisman,

Goldberg & Weisman in Cleveland was taking the deposition of the op ponent's medical expert witness? an intense and humorless specialist in orthopedic surgery, who gave every sign of being overprepared by the other lawyer.

Weisman was certain the doc tor had been told that if he admit ted a learned treatise was authori tative, it could be used to attack his credibility whenever it was in consistent with his testimony. The implication was, "Don't admit any thing is authoritative."

How could Weisman get the doctor to forget those instructions?

Weisman's first questions were

pleasant inquiries about the doc tor's qualifications, and then they started sounding like a trap develop ing. It was a trap, all right, but not the one the witness was expecting.

78 ABA JOURNAL / AUGUST 1999 ILLUSTRATION BY JOHN SCHMELZER

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Q: So let's see, doctor, that's four years of college and then four years of medical school?eight years of traininffafter high school, and

irf?i. i|t^teputst^ haairt start>

^;^^h1^^BhhI^HNN^ ?n y?ur sPe~ L^gfc*^tt^^^H^^ cialty. Right?

^^^^^^^P * Q: And ^^^^^^^^^r then what? Two W^^^^^^^K? years of internship? ^fl^^^HF A: That's right. W^^^^^m^ Q: Which makes 10 years

^HR^P of higher education? W A: Correct.

Q: Then three years as a resi dent in orthopedics?

A: That's right. Q: That makes 13 years of in

tensive study after high school? A: Actually seemed longer

rill^^H than that.

9^^^^^ JmBn^ Q: Doc ^BBB^B^^?I^^Km^i tor, there |^H9^^^^B?^^^H|tt|B has to come ^HHB^^^H^^^^^^MCT a time when ^^H^^^^^^H^^^^HV you H^^^^H|^^H|^^^^^V ready to ^^^^^^^^^^^^^^^^K^ down S^^^|^^^^^|HH^^^HKhose hooks

^^^^^^^^^HH^^ffiu^?ing it on your ^^^ Pfwn, right?

^HHPH^ The doctor thought he saw

H^^^Tj^here Weisman was going and

(P?jr^ headed him off at the pass. He was i?|p not about to admit he didn't keep

current.

A: You don't seem to under stand, counselor. Orthopedics is a dynamic, ever-changing field. It re

quires a tremendous effort to stay current, even in a small part of it.

Q: You mean the studying isn't over?

A: Hardly. Q: So what do you do to "stay

current," as you put it? A: Go to meetings, lectures,

seminars, workshops. Read medical journals, articles, books.

Q: What are some of the books and journals you might study in the course of a year to stay current?

After the doctor gave a com

mendably complete list of learned treatises, Weisman closed the door:

Q: And you study these books and journals to stay current be cause they are the leading publica tions in your field?

A: That's right. Q: So you regard them as au

thoritative in the orthopedics field? The doctor's "yes" sounded un

comfortable, but it was too late to back out. Weisman had a whole list of materials to look through for opinions that would disagree with the doctor's deposition.

As Cyril J. Mcllhargie of Cor boy & Demetrio in Chicago says, "When attacked, the mouse will go where the hole is. Your job is to give that hole the appearance of safety

?even though there is a guillotine on the other side."

So pick out the places where you are vulnerable to serious dam age from a lie by the plaintiff and start thinking how to make the hole you've chosen look like the best place for the mouse to hide.

?Angus

Dear Angus: Could you take a look at the

enclosed cross-examination tran

script? I did everything I could to ask short, leading questions. I was able to control the witness whenev er she tried to give me a hard time. The entire examination lasted less than 40 minutes, and I got every thing I wanted from the witness.

I ought to be pleased with my self, but I'm not. Frankly, I felt like the examination was pretty dull, and after reading it over two or three times, I still think so.

Any suggestions? ?Dull in Dallas

Dear Dull: You got what you needed, all

right, but I agree with you. This cross-examination was dull.

There are some easy things to do that will help make it better.

First, in most cross-examina tions, the questions should tell an

interesting story even without look ing at the witness's answers. Af ter all, in cross-examination the lawyer is the real witness who is telling the story that the direct ex amination left out.

Unfortunately, your questions were a little disordered, which makes the story line hard to follow. If you practice telling stories us

ing cross-examination questions, it will help a lot.

Then almost every question you asked followed the same basic pattern:

Q: Ms. Wexler, isn't it a fact that you called Mr. Kirkland on Oct. 15?correct?

Sometimes you left out her name, and sometimes you used "isn't that so?" instead of "correct?"

But the basic pattern was always the same:

1. "Isn't it a fact?" 2. Your statement. 3. A prod asking the witness to

agree with your statement. After a while, that pattern gets

stultifying. So I have some sugges tions.

First, practice asking ques tions without the "isn't it a fact" in troduction and the automatic "isn't that so" endings. Those phrases are so overworked that they just be come verbal clutter.

Second, your entire examina tion is essentially a series of ac cusations from you?which is just what everyone expects.

You can add a lot of life to your cross with a little creative misdirection. The point is to ask a

question that assumes something the witness has to admit is incor rect, causing your opponent some real damage.

Suppose you can score points by showing the witness never re

ported a dangerous and illegal con dition in the apartment building where she lived. Using your pat tern, the questions would be:

Q: Isn't it a fact you never called the police. Correct?

Q: Isn't it a fact you never noti fied your landlord. Correct?

Q: And isn't it a fact you never even told the building superinten dent. Isn't that correct?

Try it this way instead: Q: Ms. Wexler, when did you

call the police about this condition? A: Well, I, ah, er, actually did

not call the police. Q: Well, when did you notify

your landlord? A: I, uh, am afraid I didn't do

that either. Q: So you told the building su

perintendent? A: No. I didn't tell anybody. Q: Except your lawyer? One final point. You can use

the same basic technique to high light direct examination. Think of it as reverse leading. When the wit ness rejects your assumption, every one listens:

Q: So what did you do then, Mr. Bollens?leave the building and get out of there?

A: Absolutely not. Something needed to be done, and since there wasn't time to call anyone else, I had to find a way to shut off that water myself.

?Angus

ABA JOURNAL / AUGUST 1999 79

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