McElhaney on Litigation

Speaking of Liars

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Bronco Williams, the plaintiffs lawyer, came to town a few weeks ago to try a products liability case. He got off the plane looking like the high plains drifter, with a flat-topped leather range hat on his head; a pair of hand-tooled, en­dangered-species cowboy boots; and a pair of elk-skin riding gloves in his left hand.

Bronco told the television reporters the defendants had made a dangerously defective back brace that had destroyed his client’s spinal cord and turned her into a quadriplegic. A group of us decided to stop in on Judge Garcia’s court Friday afternoon and watch Bronco in action. Later we talked about it in the Brief Bag.

“I can’t believe Bronco called the defendant’s design engineer as his first witness,” said Beth Golden. “That’s a dangerous thing to do.”

“Not always,” said Angus, “but it was this time–especially the way he conducted his direct.”

“Right,” said Billy Hightower. “It was the same pattern all the way through.

“‘You say this, but that’s not true, is it? You say that, but it’s misleading, isn’t it? You say the other, but that’s a lie, isn’t it?’ One way or another, every question called the adverse witness a liar.”

“What’s your problem with that?” said Myra Hebert. “He should keep it up as long as the judge lets him do it. Am I right or what?”

“You’re wrong,” said Flash Magruder, the plaintiffs law­yer. “The problem is, you’re likely to get a serious jury backlash. You’ve got to be careful about who you call a liar and how you do it.”

“For once I agree with Flash,” said Dick Mudger, the insurance defense lawyer. “Juries are suspicious of lawyers. They think we’ve taken whole courses in how to hide the truth, how to ask trick questions and how to mis­lead juries. When they hear what they think is a professional liar attack an amateur, some think, ‘It takes one to know one,’ but most of them reject the professional out of hand.”

“But there’s so much witness dishonesty in trials–so much genuine perjury–there’s got to be some way to talk about it,” said Sandy Kilgore.

“You’re right,” said Angus. “And while I agree that jurors are suspicious of lawyers, there’s more to it than that. The problem is, how do you persuade a jury that someone is lying?

“And the answer is, the heart of persuasion is not to tell people what to think. You don’t need to do that. You shouldn’t try.”

“But why?” said Sandy.

Help Jurors Think for Themselves

“Because no matter who you are,” said Angus, “no matter how carefully you choose your words, no matter how well you present your thoughts, people like their own ideas better than someone else’s.

“Your job as an advocate–in virtually every setting–is to show, not tell. Calling a witness a liar is pitting your credibility against his. Worse, it’s telling the listeners–the judge and the jury–how to think.”

“So if you need to attack a witness’s credibility, how do you do it?” said Billy Hightower. “By presenting the key facts that show what the witness is doing so the jurors put the story together for them­selves,” said Angus. “That way it’s their idea–not yours.

“Take how you impeach a witness with a prior inconsistent statement: On direct examination the witness said that Montgomery Boulevard had the red light. But in his deposition he said it was green.

“The typical way to go after the witness starts with a heavy-handed commitment that Montgomery had the red light. That’s followed by a confrontation with the statements in the deposition that say the light was green.

“Then we usually wind up by snarling something like, ‘Were you lying then or are you lying now?’

“It’s much better if you seem a little puzzled and suggest the witness has forgotten something. Like this.”

Q: Excuse me, did you say Montgomery Boulevard had the red light? A: That’s right. It was red. Q: You don’t recall it being green? A: No. Q: You don’t remember saying it was green? A: No. It was red. Q: Well, take a look at your deposition–page 32, counsel. What does it say? A: It says the light was green. Q: Is green OK with you, or do you really need that to be red? “Wow,” said Billy Hightower. “The dynamics of that are totally different. You’re impeaching the witness without attacking him.”

Angus smiled. “Between the deposition and the trial, the witness changed the color of the light to red. But instead of attacking him as a liar, I wanted him to change the light back to green. By treating his testimony as a failure of recollection, everything is different. “You can ‘refresh his recollection’ instead of im­peach­ing him. Then the witness comes across as someone whose memory can’t quite be trusted, but you’re seen as one who knows the facts and is careful to get them straight.”

“I don’t know why I just thought of this,” said Beth Golden, “but how do you tell a judge she’s wrong?”

Angus grinned. “You thought of it because it’s basi­cally the same problem in a different costume. Only this time you’re attacking the decision-maker directly instead of vicariously. And you don’t want to do that.”

“But in law school and out, in all kinds of moot court and mock trial settings, we’re taught to argue with the judge,” said Regis McCormick. “It’s part of our basic training. “That doesn’t make it right,” said Dick Mudger. “Tell the judge he’s wrong and you lose. So don’t argue with the judge; argue to the judge.”

“Better yet, don’t argue at all,” said Angus. “Remem­ber: Show, don’t tell.”

Bring on the Ideas

“What about negotiations?” said Regis. “I do a lot of that in my practice, and when the clients are present the lawyers are always much more aggressive like they’re trying to impress their clients with how tough they are, the way they do in depositions.

“And the results of negotiations always seem worse when you’re both telling each other that you’re wrong.”

“Client entertainment is not the practice of law,” said Flash Magruder.

“Right,” said Dick Mudger. “One potential client said to me, ‘I want to know if you can be my pit bull.’ I told him, ‘If you want the emotional thrill of serious conflict, get a video game. It’s a lot cheaper than paying for a lawyer.’ ”

“But the time comes when you have to be open and direct,” said Sandy Kilgore. “When that happens, aren’t you better off calling a lie a lie instead of a nefarious prevarication?” “Sure,” said Angus. “But I still want it to be the judge and the jury’s idea, not mine. So in final argument I sometimes tell the jurors that their job is to work their way through the ‘tangled web’ of some of the testimony they’ve heard.”

“That’s beautiful,” said Beth Golden. “‘Oh what a tangled web we weave, when first we practice to deceive.’ It just popped into my head.”

“And because you participated in bringing that old saying to mind, it’s your idea, too,” said Angus.

A Whiff of Mendacity

Finally I spoke up. “What about Peter deManio and that Tennessee Williams play?” Angus smiled. “Thanks,” he said. “I almost forgot. Sometimes in final argument, Peter deManio in Sara­sota, Fla., would come to the testimony of a witness he had to attack: ‘Now we come to Billy Roy Suggs. Remember when he got on the stand and what he said? Reminded me of something from one of my favorite plays, Tennessee Williams’ Cat on a Hot Tin Roof. They even made a mov­ie of it with Paul Newman playing the unhappy young man, Brick, and Burl Ives playing his father, Big Daddy. Here’s what they said.”

Brick: Have you ever heard the word mendacity?

Big Daddy: Sure. Mendacity is one of them five-dollar words that cheap politicians throw back and forth at each other.

Brick: You know what it means?

Big Daddy: Don’t it mean lying and liars?

Brick. Yes, sir. Lying and liars.

“Then deManio says, ‘Later, near the end of the play, Big Daddy is dying. He knows there’s something wrong, but nobody tells him the truth. He’s been taking a nap up­stairs when a storm wakes him. Big Daddy walks down the stairs, stops, sniffs and says, in essence: Don’t you no­tice the powerful and noxious odor of mendacity in this room?’ “Finally deManio looks up from the book and says to the jury, ‘and so do you.’ ”

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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