cross examAdd category
Shellie: I’m addicted to Drop Dead Diva. You were right.
K3: I know – isn’t it entertaining.
Shellie: Who would have thought.
K3: It is such a ludicrous concept, but executed so brilliantly.
Shellie: I love how she flicks her hair over her shoulder when she scores a point.
K3: You get the case in the morning and try it in the afternoon.
Shellie: So entertaining.
K3: I love how it just takes a few sentences to shred a witness in cross exam. In fact, she has inspired me to change the way I do cross. Instead of pecking at the expert, now I get right to it. While being completely sweet and charming at the same time of course.
Am co-counseling on an asbestos case handling damages. The defense is presenting its economic expert. Typically not a real jazzy point in trial. Am listening to the attorney qualify the witness. Have never encountered this witness before. Know pretty much nothing about him. Here is the beginning of direct. I’ve highlighted the words that catch my attention:
16 DIRECT EXAMINATION
17 BY MR. WOOD:
18 Q. Good afternoon.
19 A. Good afternoon.
20 Q. State your name and address.
21 A. Mark Newton. And my address here in Seattle
22 is 1601 Fifth Avenue, Seattle 98101.
23 Q. And why are you here?
24 A. I’m here to testify regarding the economic
25 damages of the plaintiffs in this case.
1 Q. Could you give me a brief summary of your
2 educational background?
3 A. Well, I went to college for one quarter at UC
4 Santa Barbara back in 1970. And then I transferred to
5 UCLA later that year. And then graduated with a
6 degree in economics in 1974. And that’s basically it.
7 So I have a degree in economics.
8 In terms of education after that, I did
9 that to take some additional accounting courses after
10 graduating to qualify to sit at the CPA exam.
11 Q. Okay. And you are presently licensed as a
12 CPA in the state of Washington, is that correct?
13 A. Yes.
14 Q. Okay. Why don’t you give me a brief overview
15 of your professional background?
16 A. Sure. Yeah. Well, I have worked for this
17 company HSNO. I began in that — in those initial —
18 it wasn’t that when I started. It was accounting
19 under the name of the founder of the firm back then.
20 Anyway so I have worked technically for the same
21 company since 1974. Since I graduated from UCLA. And
22 so generally my work has been in forensic accounting
23 and economics. And I became a CPA.
24 I do a lot of work in cases like this,
25 where we are talking about economic damage on what I
1 would call personal economic cases. I personally do
2 wrongful death. We also do a significant amount of
3 work and other commercial types of disputes in courts.
4 So contract disputes. Other damages. Unfair business
5 practices, wherever we are evaluating the effects of
6 business from some alleged action. And in terms —
7 basically in terms of property damage. And then I
8 also do quite a large cases involving (inaudible)
9 cases, where somebody is concerned that someone who is
10 managing a business, for instance, may have been
11 misusing the assets of the business. So we get
12 involved in tracing that kind of work.
13 And then the last category, generally
14 speaking is we do a lot of work on insurance claims.
15 So these would be fires, floods, hurricanes, things of
16 that nature. And we help determine how much —
17 usually, usually business interruption type lawsuits
18 would be paid under an insurance policy.
19 Q. And you may have said this and I missed it,
20 but what does HSNO stand for?
21 A. Well, Hagen, Streiff, Newton & Oshiro.
22 Q. And that’s the name of the company you are
23 working at?
24 A. Yes.
25 Q. And have you ever taught any courses?
1 A. Well, I have taught — in essence, yes. I
2 have taught a lot of classes over the years, usually
3 in the context of seminars at conferences. So usually
4 professional organizations. And I address certain
5 topics in those cases, yes.
6 Q. And I think you mentioned you have been
7 qualified to testify as an expert in courts of law
8 before, is that correct?
9 A. Yes, I have.
10 Q. Which courts?
11 A. Well, primarily — actually this was the
12 first chance I have had to testify in the state of
13 Washington. But I testified very often in California.
14 I started off my career in California and I have been
15 here for about 9 years. And just hadn’t had this
16 opportunity for that time. But I testified at scores
17 of times in California. Testified in federal court
18 cases in Nevada, Ohio. Where else have I testified
19 at? I have testified before the International Trade
20 Commissioner in the late ’80s. I even testified in a
21 case in Seoul, Korea.
22 Q. And you have been retained on occasion for —
23 as an expert for plaintiffs in personal injury
24 lawsuits, is that true?
25 A. Yes.
1 Q. But when it comes to asbestos lawsuits have
2 you been retained by plaintiff/defendants?
3 A. Always on the defense on asbestos cases we
4 have just — over the years it’s evolved where we work
5 for only the defendants.
6 Q. What’s the hourly rate you charge for your
8 A. For my testimony it’s $450 per hour.
9 Q. Okay. And could I ask you that when you give
10 your opinions for me here today, that you do so with a
11 reasonable degree of scientific certainty?
12 A. Yes.
13 Q. And you agree that you will give me opinions
14 that are more likely than not true?
15 A. Yes.
The expert is very professional looking. Wearing a gorgeous tailored suit that puts mine to shame. He is poised, confident and pleased with how fluidly the well scripted direct is going.
Skip now past 20 more pages of testimony and the laying down of his opinions.
Time for a Drop Dead Diva moment. I summon the persona of Drop Dead Diva and approach the witness. Let’s begin by breaking all cross examination rules and leading off with an open ended question.
13 CROSS EXAMINATION
14 BY MS. KOEHLER:
15 Q. Can you — sorry, can you tell me your degree
16 in economics, what was your degree?
17 A. It’s a Bachelor of Arts degree in economics.
18 Q. So when counsel asked you to testify within a
19 degree of scientific certainty, you are not capable of
20 doing that, are you?
21 A. Well —
22 Q. You are not a scientist?
23 A. Well, I wouldn’t call myself a scientist, but
24 I would call myself a forensic economist.
25 Q. So let me repeat my question. Counsel asked
1 you if all your opinions were based upon a scientific
2 certainty, and you are unable to testify to that
3 level, am I correct?
4 A. I don’t recall if that was the exact question
5 I was asked or not. But I think in terms of what,
6 what I —
7 Q. I just asked you a very specific question.
8 A. Okay. I don’t recall if that was the exact
9 question and answer.
10 Q. Assume that that was the exact question that
11 was asked to you. Did you tell this jury that all
12 your opinions are made within a — a degree of
13 scientific certainty? Assume that question was made
14 to you and you said yes. Is that an incorrect
15 statement of your capacity to give an opinion to this
17 A. If under your hypothetical that was the
18 question asked and that was the way I answered it,
19 yes. I don’t think I could answer with certainty on
20 what more or less probable. And I thought that was my
21 answer, but I apologize (inaudible).
Turn, sashay off and flick my hair over my shoulder…before resuming the rest of cross which includes of course a few more reminders of how well he was stabbed right out of the gate.
17 Q. And is that what you are saying to this jury
18 is that the lost wages and lost earning potential are
19 the same?
20 A. In this case, yes.
21 Q. Okay. Well, that’s an assumption that you
22 are making.
23 A. I don’t believe it’s an assumption. It’s a
24 conclusion that is my opinion that that would be the
25 case in this case.
1 Q. And your opinion is on the basis of what
2 a — to what — what is the basis of your opinion?
3 What is the — what is the expertise of your opinion
4 so that we know what to call it? Do you agree that
5 it’s not to a scientific level. What it is? [Eyes wide and shrug shoulders to the jury]
6 MR. WOOD: Objection, vague.
7 A. Well —
8 THE COURT: Well, if you understand it,
9 you can answer it.
10 A. Yes. I think the — when you threw in the
11 scientific reference to the scientific method, I’m not
12 sure what you mean in that phrase.
13 Q. (By Ms. Koehler) Well, I didn’t come up with
14 that, your counsel did.
15 THE COURT: Okay. You know, you need a
16 question, okay.
17 MS. KOEHLER: Okay. I’m sorry, Your
19 Q. (By Ms. Koehler) The question is: What
20 degree of — what is your testimony, what is your
21 opinion, what is it called? Is this just a more
22 probable than not opinion, or do you have some kind of
23 way to do your opinion that you would like us to
25 A. Well, it’s my — I’m sorry.
1 MR. WOOD: Objection, vague.
2 THE COURT: Do you feel you can answer the
4 THE WITNESS: I think I can.
5 THE COURT: Go ahead.
6 A. Well, I think it’s the basic premise that I
7 am using is more probable than not.
Photo: Framed picture of me with my best friend in the whole world Shellie on her wedding day. Sitting in my bookcase .
Prologue: Plaintiff had back surgery. She had returned to work only just the past week, when she was hit hard by a bad driver. Ultimately she needed a second surgery due to the crash. The bad driver admitted fault and her company paid. But she didn’t have enough insurance. So our client, Ms. P made a claim under her Underinsured Motorist Policy. Which is what you are supposed to do. Allstate, her insurance company, required her to sue them as that is what the UIM policy says has to happen. Ms. P sued Allstate. Then went thru Mandatory Arbitration. But Allstate didn’t like the verdict so they appealed it and forced a jury trial. Their main witness was Dr. Blue, a retired neurosurgeon. During the direct exam, he tells the jury that Ms. P’s additional problems after the crash, are related to her pre-existing conditions that had been mildly strained. He says her second surgery wasn’t related to the crash.
This is my trial diary excerpt from March 2013.
As direct winds down, I’m thinking wow. He’s really good. And then it is time for cross.
Us lawyers spend a lot of time preparing for cross, thinking about cross, going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect. But here is the truth. There is no one perfect way to do cross that works on all expert witnesses. There is no magic bullet that will work every time. Did I read his report in advance – yes. Did I read a few depositions he had given before yes (thanks Ben Wells). Did I make some notes – yes. Do I know the chapter approach – yes. Do I know the rules approach – yes. Have I gone to reptile – yes.
But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn. Being able to be in the moment. Not focusing on obscure minutiae. Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible. This is what is needed in cross. At least for me.
So I sit there as Jodi [defense lawyer] returns to her seat and this is what am thinking.
WWDDDD. What Would Drop Dead Diva Do. (See the prior blog). This is no joke. This is very serious. Love the way she sashays up to the witness and comes up with a spur of the moment perfect cross that wins the entire case. Because it is just so perfect. Just takes her a few questions. Never involves going back and rehashing everything on her terms. Never boring. And you are always cheering when she’s done.
I don’t want Dr. B to talk any longer than absolutely essential. He is too good. Want him gone.
So instead of talking about the almost million dollars he’s made in the past three years working 15 to 20 hours a week almost entirely for insurance companies, I start off with something completely different. (Though we do talk about the big bucks a bit later). I start where Jodi leaves off – destroying our causation.
I need a demonstrative aid. Have been looking around courtroom. Thinking through the tissue box and am pretty sure that is where am going to go. And then something better strikes me. Literally as am walking up to the bar.
Turn around. Get my rain coat off chair. Get three empty paper cups from our table. Fill one cup with water. Spread coat on top of the bar below the witness. Place the cups on them. And say hello.
Without being mean to him, lighting into him, or picking at him, this is how we begin.
Pour a little water into one cup and hold it up.
Dr. this cup is a vertebrae and I’ve filled it with fluid. He corrects me because I meant to say it was a disc. Oh silly me you are right (as usual). Yes, this is a disc filled with fluid. Now let’s assume this is a perfect disc of a young person under the age of 35 who has no degenerative disc disease. If I subject this disc to trauma…and here I try to rip it. But it is a tough little sucker and I can’t.
Nick the clerk hands me scissors. I make a teeny cut, hold it up again. And rip it all the way to the bottom. The water drops onto my coat.
So in this case, is it fair to say that the sole cause of the disc tearing is the trauma I just caused.
Dr. B says yes. Inside he’s thinking, is she just playing dumb or is she…
I hold up the second cup and pour in some water. Make a cut at the top with Nick’s scissors.
Now, Dr. this time the disc is that of a person like you or I. Over the age of 35 with degenerative disc disease (ddd – hey same initials as DDD – no wonder this is going to work!). Do you follow me and he says yes.
I rip the cup to the bottom and the water falls onto my coat.
Am I correct that even though the disc was already torn a little bit from ddd, it could still be injured further if subjected to trauma. He agrees.
I hold up the third and final cup. Make a cut at the top.
Now Dr. again this is a disc with DDD. I then rip the cup most but not quite all of the way. The water does not fall out.
If a person has ddd that has led to a preexisting partial tear that isn’t causing the fluid to leak out, but a few months or in this case six months later, the tear finally gives way…and then I rip the cup the rest of the way and the water splashes to join the rest of the lake on my coat. Does that mean that the trauma had nothing to do with causing that big tear.
He doesn’t quite get it so I have to do it again, a little better this time.
He has to agree with what I’m saying. Because after all, the proof is on the torn up cups and my poor coat.
I finish with cross. We take a break. And Jodi spends the time with him figuring out how to poo poo all this.
When the jury comes back, the redirect is well rehearsed. Jody and Dr. J do a fine mockery of my little misguided attempt at an exhibition. Confident they have shamed me to pieces. Yet, on recross, instead of shying away from it. Well, I think WWDDDD. Pick up my sodden coat. Sashay back up there. Plop it back on the bar. Redo cup number three all over again. And again, he has to agree.
There are a few more things that happen. Text Cristina who has come to watch: Did that work. She texts back: I think so. You probably saved the whole case there.
Here is the transcript of Dr. Blue’s cross, redirect and recross, along with my little comments: