McElhaney on Litigation

Blind Spots

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Dear Angus:

I’m in an embarrassing situation. I represent a small contractor suing a local build­ing materials company for breach of contract. The case should settle without much time or money spent on discovery or pretrial preparation. Both parties contributed to the problem, and only a bit more than $10,000 is involved.

But the feelings of the parties and their friends are running high, and the case has become a cause célèbre here in Cobbs Corners.

When I filed the case, my old friend Slick Warren–who represents the defendant–and I agreed that the only sen­sible way to try it was to abandon the typical modern, overdone discovery, which could easily cost four or five times what the case is worth.

Instead, we agreed there would be no depositions, no interrogatories, no requests for admissions or motions for summary judgment. Each side would call no more than four witnesses, including the parties, and we would exchange our witness lists six weeks before trial.

It seemed like a good idea at the time, and Slick and I were both looking forward to a little friendly trial by ambush–the way cases used to be tried.

But when the weekly Cobbs Corners Courier started play­ing up the case on its front page, everybody in town took sides pretty much 50/50. Now, none of the witnesses will talk to the opposing lawyers or anyone else connected with the case.

That means Slick and I will both be conducting blind cross-examinations of all the witnesses. That’s not so hard for Slick, who has extensive experience both as a prosecutor and a public defender. But I’ve never tried a criminal case in my life, and don’t know how to do a blind cross.

I’m afraid I’ve been tricked into a losing deal. What do I do?

Cozened in Cobbs Corners

Dear Cozened:

The idea that there is complete discovery in civil cases is an expensive delusion. Edward Bennett Williams used to say, “There is no substitute for knowing everything,” but the truth is, nobody does, no matter how much discovery they do.

Blind cross-examination–or at least cross-examination with big blind spots in it–is a fact of life in every kind of case. Litigation is not a risk-free pastime, so it’s better to have a strategy for dealing with blind cross than to pretend you never have to do it. Start with informal discovery. Maybe the witnesses won’t talk to you, but chances are everyone else will. While you can’t base your case on rumor and innuendo, you’d be surprised what you’ll learn about local people and businesses by just asking around.

And the Internet has an astonishing wealth of information–even very small businesses often have Web sites that are, after all, their own declarations.

In-Trial Discovery

If you can’t do pretrial discovery, do in-trial discovery. Criminal defense lawyers know that in federal court, the Jencks Act (18 U.S.C. § 3500) gives you the right to see the witness’s prior statements before you start your cross-examination. And because defense lawyers inevitably ask for enough time to study those statements before cross-examining, most federal district judges tell prosecutors to turn over the Jencks material before trial if the defense asks for it.

But what about civil cases? Think of Rule 612 of the Federal Rules of Evidence as giving you a little in-trial discovery. If a witness uses a writing to refresh her recollection during testimony, Rule 612 gives you the right to see it and examine the witness on it. And if the witness uses any writing to refresh her recollection before testifying, the court has discretion to let you see and use it.

But how do you know whether the witness used anything to refresh her recollection before trial? You’ve got to ask. It should be the first thing you do on cross unless you’ve got a good reason for waiting.

Next, if you can’t get a deposition of a witness before trial, how about doing it during trial?

That’s crazy, you say.

No, it’s not. It’s the voir dire examination of a witness, and we do it all the time. It’s a preliminary examination of an opposing witness’s qualifications or the admissibility of his testimony–which can cover a lot of territory.

It’s in the court’s discretion to permit or deny voir dire, and in the appropriate circumstances you can do it outside the presence of the jury.

The Recollection That Refreshes

Say the witness on the stand is one of your opponent’s employees who wrote a memo in the case that con­tradicts his testimony on direct. This can be even more powerful than a deposition for impeaching the witness with a prior inconsistent statement.

Now suppose the document was written by someone else but quotes the witness. It’s useless for cross-examining him, right?

Wrong. It might be admissible as a business record or even as an admission of the opposing party. But even if it’s inadmissible as evidence, you may still use it to refresh the recollection of the witness.

Why? Because you can use virtually anything to refresh the recollection of a witness. Say the witness is Albert Gonzales, the defendant’s em­ployee in your contract case. On direct examination, he denied that the defendant had been running low on important supplies of building materials.

But you’ve got a memorandum written by your client, dated Oct. 15, 2002, that says, “Got a call from Al Gonzales at Central Supply Co.’s warehouse. He says they are dangerously low on crucial supplies of 4x4s and 2x6s. Jon Douglas.”

So your cross-exam goes like this:

Q. Mr. Gonzales, back in October of 2002, Central Sup­ply Co. was running low on certain sizes of lumber, wasn’t it? A. No, it wasn’t. Q. You don’t remember running low on 4x4s and 2x6s? A. No, I don’t recall anything like that. Q. Well, do you remember calling Jon Douglas at Cobbs Corner Construction on Oct. 15, 2002, and telling him you were running low on some crucial supplies, including 4x4s and 2x6s? A. Nope. Doesn’t ring a bell. Q. Well, maybe this will help (and you show the memo, marked as a plaintiff’s exhibit, to Mr. Gonzales). Look at the name on the bottom. Is it Jon Douglas? A. Yes. Q. Now take your time and read that memo to yourself. (Pause). Is any of this starting to come back? A. Yeah, well, I guess we were. Q. Were what? A. Running low on some important supplies. Q. Like 4x4s and 2x6s? A. Yeah.

Low-Risk Questions

Of course you’re not going to go on any wild fishing trips, hoping to catch something big. You’re going to ask low-risk questions that call for facts, not opinions or evaluations. Only ask questions when you know what the answers should be, based on logic, context and common sense. ] When you get what you need, stop. And not just because the next question might be the famous “one question too many.” Even if you manage to avoid asking some dangerous question that would have produced an awful answer, it will usually be the first question your opponent asks on redirect, anyway.

The main reason to stop as soon as you get what you need is because most cross-examiners browbeat and bully­rag witnesses with sneering, sarcastic questions that beat everything to death. That’s the kind of cross that can lose a case by making the jury hate the lawyer and actually take the side of a lying witness.

There are times when you don’t care how the witness answers the question. Sometimes, any answer other than what you want would be so implausible that it would make the jury snort in derision. When that happens, no reply from you is necessary–other than a pause to let the answer sink in, maybe followed by an “mm hmm.”And there are times when the answer doesn’t matter be­cause the purpose of asking the question is to bring some­thing to the jury’s attention.

Like the cross-examination of Louie, the state’s key witness in one of those 1930s crime dramas. Louie was a thug who was given immunity from prosecution for testifying and was all dressed up in a brand-new business suit for the trial. It was the end of cross and the defense coun­sel was about to sit down when he turned and said, “Louie, do you get to keep the suit?”


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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