I’ve written before about trying a case with my zipper unzipped, but today I’d like to disclose some of my favorite verbal blunders during cross examinations the last 4 years, just in case I ever start getting cocky about never losing at trial.
1) Plaintiff is on the stand, and I’m wanting to impeach her credibility with a prior inconsistent statement from her deposition. She’s just testified to something that conflicts with her deposition testimony. I smile. I have her. I have flagged the page on which she has given conflicting testimony, as I have anticipated that her story will change.
Me: May I approach the witness?
Me: (pause for a good 3 seconds) I’ve actually never been asked “why” before. Usually, I just walk up as I wait for the “you may.” Um, so I can show her page 45 from her deposition testimony? Please?
2) I have a witness on cross. Witness is a blue collar sort of fellow with an 8th grade education. I am not thinking about my questions so much as I am just trying to get the answers I want.
Me: Now, Isn’t it true that prior to your agreeing to cease working with Company X, you were engaging in behavior that could be construed as sabotage?
Judge: Mr. Daniels, while your diction and grammar are impeccable, the witness doesn’t know what you just asked him. Can you rephrase please?
3) The plaintiff was fired for refusing a drug test. I want the fact that he’s been convicted of narcotics abuse in the past to come into the record. I’m fairly sure the plaintiff’s attorney will object and that the testimony will be disallowed. I try anyway.
Me: Isn’t it true that you’ve been convicted before of narcotics possession?
P’s atty: Objection, irrelevant and unduly prejudicial.
Me: So, following your conviction for drug abuse, was finding a new job difficult?
Judge: Counsel! Did you hear me say “sustained”?
4) Slip and fall case. Plaintiff acknowledged no foreign substance on the floor in her deposition and during my initial cross earlier in the day, but she’s changed her story a bit on redirect.
Me: Now, earlier on direct, you told your attorney you thought there may have been a foreign substance on the floor.
Plaintiff: I said I saw a foreign …
Me: No, you said you thought you saw a foreign substance, which is funny, because in your deposition…
Plaintiff: That’s not what I said.
Me: Well, we’re both in luck–there’s a court reporter sitting right there who has taken everything we’ve said down, so we can just ask her to…
Plaintiff: I know what I said. I don’t have to have it read back to me.
Me: Oh, I think you do.
I think I like this exchange so much, because it reminds me of Kaffee and Jessep in A Few Good Men.
5) Opening statement:
Me: Ladies and gentlemen of the jury, what we have here is a failure to use common sense. We… I’m sorry; it appears there are no gentlemen in front of me today. I’ll start again. Ladies of the jury, what we have here…