McElhaney on Litigation

Learn to Do Without

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I stopped in Angus’ office with a pot of dark mountain roast coffee and two molasses, raisin and walnut cookies. But he didn’t even seem to notice.

“Why is it,” he said, “some lawyers never understand the most basic rule of trial insurance–you need to have at least two ways to prove every essential fact of your claim or defense?”

“I think most lawyers know that,” I said. “Really? Take a look at these letters,” said Angus.

Dear Angus:

I represent Ray Trammel, a local rancher who has discovered oil on his land. Ray’s neighbor, Mr. Martin, has just moved his fence 100 yards west, claiming that part of Trammel’s land actually belongs to him. It’s a tangled dispute that’s been going on for more than 20 years, complete with conflicting property descriptions, contested deeds and disputed boundaries. Understandably, the argument has gotten more intense since drilling for oil has started.

About two or three months ago, Billy Suggs, one of Mr. Martin’s hired hands, told my client–in front of a number of other people at a local bar–that Martin had admitted he had no legal claim to the land but said it was only right to help Ray share his good fortune with his neighbors.

Obviously, Suggs would be a valuable addition to Ray’s case, especially since the county land records are not very reliable and the two local surveyors are often at odds. The problem is, I can’t find Billy Suggs.

When I’ve called over to Martin’s place, Mindy, the cook, would answer the phone. When I asked to speak with Billy, she would say, “Who’s calling, please?” And when I gave my name, she would say, “Billy doesn’t work here anymore.”

When I nose around town in places like Ernesto’s Barbershop, the Rio Puerco Cafe or the Hitching Post, everyone says they haven’t seen Billy for over a month.

Word must have gotten back to Mr. Martin about Billy shooting off his mouth in the bar. And I can’t help but think that Martin’s lawyer, C.B. Willard–known as the “Silver Fox” because of his long white ponytail and his legendary trial tricks–has helped cook up Billy’s disappearance.

And that’s my problem. I want Billy at the trial. Any suggestions for how to smoke him out? Troubled in Truth or Consequences

Dear Troubled:

You can start by hiring a private detective instead of trying to be one yourself. You may wonder why I say this. One good reason is what the cook said over the telephone. It’s a nice little piece of circumstantial evidence that shows what’s going on. If a detective had called the Martin household and got the same runaround you did, he could testify to what the cook said.

But you can’t take the stand and be a witness unless you withdraw from representing your client in the case.

Besides the advantage of being able to testify, a good private detective is going to do a much better job than you will in locating Billy.

But suppose no matter what you do, you just can’t find him. This is not an unusual problem. Nancy Lawler has been a divorce lawyer in Atlanta for 30 years. She says there are more lawyers and clients hiding witnesses today than ever before.

Nancy calls it “hiding the honey.” Say the husband in a divorce case (often with the help of his lawyer) doesn’t want his girlfriend called as a witness, so he sends her out of state, or even out of the country.

That can be used against them.

First, Nancy makes her record. When she can’t find the witness, she makes repeated efforts to serve her with a subpoena to appear for a deposition.

When that fails, Nancy sends a letter to the other lawyer, explaining that she has been unable to locate this witness who is associated with his client and the case, and asks: Will you make her available to testify?

The lawyer inevitably responds with a letter that says, “I do not represent this person. She is not a party to the case, and I have no control over her.”

Which is just what Nancy wants? She offers those letters into evidence to show an admission by conduct that the appearance of the missing witness would hurt the husband’s case.

The same dynamics might work with Billy Suggs and the Silver Fox.


Dear Angus:

I’m in the middle of a big trial and suddenly I’m in big trouble. I’ve got the worst kind of missing witness: dead.

I represent a small corporation that’s being kicked around by Windstrom & Crusher. They’re representing one of the biggest banking firms in the country and have pulled every trial trick they can think of.

Even so, I thought we were doing pretty well until the other side was able to keep out some key testimony from one of my depositions. Here’s what happened:

Before trial, I took the deposition of a secretary who used to work for my client, Cranston Electronics. In asking her about one of the important letters in the case, I pointed out a handwritten margin note on the second page: “Galactic Petroleum agrees to indemnify if this occurs.”

Evidence from The Beyond

While it didn’t seem too important at the time, I asked the witness whose handwriting that was. “Ollie Cranston’s,” she said. “He died three years ago.”

There was no objection, even though the lawyers from Windstrom & Crusher had already made more than 300 objections at this deposition.

Six months later, the secretary went on a skiing trip to Steamboat Springs and was killed when she collided with an out of control snowboarder.

While it was a tragedy for the secretary’s husband and kids, and unfortunate that we had lost an effective witness, I took some solace in having her deposition.

But then that cryptic note–and the identity of who wrote it–became one of the key issues in the case.

And when my trial assistant started to read the note to the jury, Tricky Strickland–Windstrom & Crusher’s lead lawyer–objected. He said I hadn’t laid a foundation for the witness’s opinion that the note was in Mr. Cranston’s handwriting.

I said they waived their objection by not asserting it at the deposition.

Strickland said it was reserved.

I said that under civil procedure Rule 32(d), the objection was not reserved if the problem could have been fixed–obviated or removed, like it says in the rule–at the deposition. And I could have fixed it right then in less than 30 seconds.

Wrong, said Tricky. At the start of the deposition we had agreed to the “usual stipulations,” he said, and that meant all objections were reserved except those concerning the form of the questions. Since the lack of a foundation was not just a matter of form, their objection was reserved.

The judge ruled that since I hadn’t laid the foundation for the secretary’s opinion that the handwriting was Mr. Cranston’s, the answer was inadmissible.

That was last week. This week the judge has a big criminal case, but next week we’re back in court with only two days of trial left.

What do I do?

Skewered in Scranton

Dear Skewered:

The problem with agreeing to the “usual stipulations” is nobody knows what they are other than reserving all objections except those that go to the form of the questions. And because nobody wants to look ignorant when the other side says, “Usual stipulations, counsel?” they agree.

The rules of civil procedure give the questioner more protection than the usual stipulations do. If the problem could be fixed at the deposition but isn’t, the objection is waived.

But because you agreed to the usual stipulations, you weren’t covered by the rule. And I don’t think you can squeeze out of the situation by arguing that in making more than 300 other objections, Mr. Strickland was impliedly waiving any he didn’t make at the time. That leaves you with your problem, which fortunately isn’t as bad as it may seem. It’s a product of “thinking inside the box.” You’re trapped by the logic of your own language. You’re trying to solve “the problem of the missing witness.”

You don’t need to do that. You’ve already got all the rest of the “missing witness’s” testimony into evidence with the deposition.

And the letter with the margin note is a separate exhibit.

Which means you can offer it into evidence right away, promising to “connect it up later” with any other witness who is familiar enough with it to say, “This note is in Mr. Cranston’s handwriting.”

The next time someone says, “Usual stipulations?” just say, “No, thanks. The rules of procedure are fine with me.”


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 Joseph C. Hutcheson 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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