Evidential essentials: How witnesses can make or break a case
It was a cold Canadian winter morning. But let me get back to that in a moment. The success of your case often gets down to three things: witnesses, witnesses and witnesses. Good advocacy helps, too, but that generally means marshaling good witnesses.
Now, back to that cold Canadian winter morning: I was about to enter a restaurant for an enjoyable breakfast when I slipped and fell on a large patch of ice right at the entrance. As I lay there clutching my shoulder, a gentleman came over and helped me up, saying, “Careful, the walkway is a skating rink.” That sage comment was an understatement. Actually, I would say that was the closest I ever came to participating in the Ice Follies.
He alerted the restaurant staff, and a lady came out and dumped a bucket of salt on the de facto outdoor arena. I passed on the breakfast but asked for the man’s contact information. He handed me his business card, noting that he was a financial adviser.
That was the first time I avidly accepted a business card from a financial adviser. And it was a good thing I did. The insurance company eventually interviewed him, and as the adjuster put it to me, “There is some corroboration of the incident. I believe we should be able to settle this case.”
But not all of us lawyers appreciate the importance of witnesses. I once had a client who tripped over a protruding piece of lumber at a national chain hardware store. He told me two customers who witnessed the event offered to give him their contact information, but the assistant manager who arrived at the scene said it wasn’t necessary and told them to leave. I wonder whether the store presents a course to their staff on risk management, and when they get to unfavorable witnesses, the manual reads, “Shoo them away.”
As lawyers, we hear that the key to success with witnesses is preparation. I found in my 40-plus years of practice that no matter how hard you try, some witnesses are incorrigibly unpreparable. For example, we always tell witnesses not to give exact measurements unless they are 100% sure of them. I would tell a client, “Say about, or more or less.” Or you tell them, “Unless it’s 100% accurate, never say never or always.”
Once under oath, how many times have we heard something like:
Opposing lawyer: Do you ever exceed the speed limit?
Witness: Never. I was driving 59 miles per hour.
Opposing lawyer: You are telling the truth, are you?
I find police witnesses are generally strong witnesses. It helps that they make notes of the events and use their notebook to refresh their memory. They will coyishly ask the judge whether they can refer to their notes. The judge, knowing the drill, will exercise restraint and hold back from commenting something like, “Officer, you mean you don’t have perfect recollection of the arrest, which took place four years ago?”
After the officer confirms he or she made these notes contemporaneously with the event (and unaltered, of course), the judge then looks around at the lawyers and says, “Sounds fair to me. Any objections?”
There is one police officer, though, whose evidence never carried the day. I am thinking about Perry Mason’s Lt. Tragg. The homicide detective always testified for the prosecution, which virtually never won a case. Tragg could come across a body with a note on it reading, “I stabbed Horace Henderson. He deserved it. Sincerely, Mel Grimsby.” Even if he arrested Grimsby and got a signed confession, Grimsby would still get off.
All along, I would blame District Attorney Hamilton Burger for the fiasco. But on reflection, I have to say Tragg always arrested the wrong person. Not Burger’s fault. Tragg has to be the most hapless cop in history. I wouldn’t want him as my witness.
Being a witness can be stressful, even for lawyers. A client of mine once sued a prominent litigation lawyer over a construction contract. The defendant lawyer made the mistake of representing himself. In the middle of my client’s testimony, the lawyer jumped up and shouted, “That’s not true!”
The judge turned to him and said, “Now, now, Mr. Sullivan; you know how it goes. You’ll get your opportunity to try to get to the truth.”
Then again, some witnesses, not being familiar with the process, are not stressed at all. They do not even realize who is who in the courtroom.
An elderly client of mine testified at a trial in a very low voice. The judge had trouble hearing him, especially because he was facing the opposing lawyer during cross-examination.
The judge interrupted him, saying, “Mr. Moscovitch, can you please look at me and speak a bit louder? I can’t hear you.”
The witness replied, “It’s OK. I’m not talking to you. I’m talking to him.”
Moscovitch wasn’t stressed, unlike Sullivan. (Fortunately, the judge heard enough to grant us judgment.)
Then we have lay witnesses who can testify—say, in injury cases—as to the daily lifestyle of the injured party. Unlike many expert witnesses, they are not hired guns and there is often that human ring of truth in their testimony.
I once had a case where my client’s chronic pain resulted in a significant personality change, losing interest and joy in life. The psych experts threw around academic terms such as post-traumatic stress disorder and antisocial personality disorder and DSM-IV.
We called a couple of lay witnesses, one of whom described my client’s recreational and social activities, adding, “Before the accident, Jake was a bear. Now, he’s a mouse.”
Presumably, this type of testimony is fruitful, and given the verdict, it must have impressed the jury.
As I think about it, I wonder whether we should educate the professional experts to adopt some of the nonpretentious simplicity of the lay witnesses. I don’t know how many shrinks will change their academic styles and say something like, “The plaintiff has a major depressive disorder. In my professional opinion, he’s a mouse.”
The concept of witnesses goes back over 3,000 years, where “Thou shalt not bear false witness” makes its debut in the Ten Commandments. Witnesses must have been important then. Where would our profession be without them now?
Incidentally, I did get a reasonable settlement for my slip and fall case. To great witnesses!
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. Read more of Strigberger’s work at marcelshumour.com, and follow him at @MarcelsHumour on Twitter.