Dealing with a lying witness will happen to every lawyer who tries cases. Francis Wellman in The Art of Cross Examination (1903) discusses the perjured witness.

In Chapter IV,  Wellman points out a false testimony witness may display “in the voice, in a vacant expression of the eyes, [and] in a nervous twisting in the witness chair….” We see these traits in Mayella Violet Ewell in the the movie clip from To Kill A Mockingbird where Gregory Peck presents classic cross examination.

Wellman covers techniques to use on the unsophisticated lying witness. “Try taking the witness to the middle of the story then jump… to the beginning then to the end.” This works because the witness has “no facts with which to associate the wording of her story.” She can “only call to mind as a whole rather than detachments.”

Wellman teaches “[d]raw attention to facts dissociated from the main story as told. [S]he will be entirely unprepared.” (This is seen in the clip when Peck demonstrates Tom’s lame left arm). Then, like Gregpry Peck in our film clip, return to the facts you have called to her attention (Tom’s lame left arm) and ask her the same question again (how did the rape take place given prior testimony).

As we learn from  Wellman  she cannot invent answers as fast as the questions.”[S]he will…become confused and from that time be at your mercy.” Then Wellman says let her go as soon as you have made it clear her testimony is not mistaken but lying.

As we see in the clip, and as predicted by Wellman, Mayella Ewell, is at the mercy of Atticus Finch. She cracks as Atticus and everyone else watches. This is the ultimate cross examination of a perjured witness.

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This cross examination discussion is from my cross examination notes in a survival action economic loss case.

Forensic Economist. Agree you develop estimates for numerous variables that affect the recovery in tort cases. Agree in a survival action these variables are: 1) Base Earnings; 2) Earnings Growth Rate; 3) Fringe Benefits; 4)  Personal Consumption; and 5) Discount Rate.

Base Earnings Rate. Defense forensic economists will start as low as possible. When they begin too low cover how the low base rate was arrived at and why a low base rate will lead to a lower economic loss amount. Demonstrate the rate of pay at which the economist should have started.

Earnings Growth Rate. Another way the defense economist can understate economic damages is through the “earnings growth rate.” Earnings do not grow in a linear manner until retirement. Typically they peak about ten years before retirement. Here time must be spent with our economist to determine and understand a fair economic growth rate. When the defense economist fails to do this and understates the growth rate demonstrate in cross examination this leads to an understatement of economic damages.

Fringe Benefits. The defense economist will start with a low base income rate and fail to add fringe benefits. “Data from the last few decades reveals that fringe benefits have increased significantly as a percentage of overall compensation. These benefits now account for almost 30%… of total compensation. ,,, Damage calculations must therefore include a valuation of fringe benefits.” David Gordon, A Forensic Economics Primer (Journal of Comprehensive Research).

Consumption. The defense economist may try to overstate personal consumption. This is because the amount of personal consumption is deducted from lifetime earnings before the discount rate is used to arrive at net economic loss. Future earnings of the deceased are adjusted for his consumption. See id. at 44-45. Consumption covers expenditures on goods and services, but does not include joint family expenditures. When possible the economist will look to actual expenses, but this does not work in the case of a young decedent. Have an understanding of how your economist is addressing personal consumption, and make sure it is solid. Hold the defendant economist to a similar analysis to prevent getting away with overstating consumption which results in understating net economic loss.

Discount Rate. The United States Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) addressed the issue of the proper discount rate in a personal injury case involving future economic loss. The Court reasoned in all personal injury cases involving future economic loss “it is reasonable to suppose that interest may safely be earned upon the amount that is awarded. Id. at 537. Thus, the ascertained future benefits should be discounted. The Court pointed out the discount rate should be one earned on the best and safest investments. Id. The injured plaintiff is “entitled to a risk-free stream of future income to replace his lost wages; therefore, the discount rate should not reflect the market’s premium for investors who are willing to accept some risk of default.” Id. The Court concluded the amount of future economic loss must encompass the amount the injured plaintiff would have earned during each year he could have worked but for his injury and the appropriate discount rate “reflecting the safest available investment.” Id. at 538. Have  the Jones case when cross examining the defense economic expert. This is because the defense expert will likely use a high discount rate arrived at at least partially from stock market return rates. Remember, the higher the discount rate the lower the net economic loss amount. The use of the high discount rate deflates economic loss contrary to our Supreme Court.

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 Cross examination is a challenging part of the trial.  It presents the opportunity to either turn an adverse witness into my witness or destroy the adverse witness. Either way my case benefits form successful cross examination.

My preference is to turn the witness into my witness. On destroying the adverse witness I do this in a way the jury will accept. I never embarrass, badger, or abuse a witness.

One of my favorite cross examination movie scenes is Charles Laughton in Witness for the Prosecution.  As we see from viewing this short but sweet cross, Laughton is able to destroy a fact witness in a way acceptable to the jury. He uses the classic inability to perceive facts to destroy the witness.

As we see in the clip Laughton begins by setting the foundation for inability to hear (and hearing a conversation is the basis for the adverse testimony). In setting the foundation Laughton begins by asking the witness in a booming voice if she recently applied for a hearing aid. In doing this Laughton uses change of voice (going into a less audible voice) to dramatically illustrate the witness’s hearing problem. When the prosecutor objects Laughton unfazed agrees to repeat the question.

In a booming voice Laughton restates his question with the witness admitting she has yet to receive her hearing aide. Continuing in his booming voice Laughton verbally summarizes the witness’s testimony. In doing this he paints the scene within which the witness is supposed to have heard a conversation that could not be heard by a person with poor hearing. Then by again lowering his voice Laughton demonstrates the witness’s inability to hear as she again cannot hear Laughton’s lowered voice. The damage is done. The witness is destroyed without being embarrassed, badgered or abused.

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After watching outstanding webinars during the Pandemic of 2020 I see the most effective way to try a significant personal injury case is through the use of video sound bites. Now I am taking video depositions, ordering the digital copy and producing sound bites for trial. With this said there are cases I will try without video depositions for cross examination. So either way below are the “Old Way” and the New Way to impeach the witness with a prior inconsistent statement.

THE OLD WAY. Howard Nations, on using prior statement to impeach:

1. Illicit.  Get the witness to state the contradictory testimony. In the old way without a video sound bite stand so witness must face jury to answer.

2. Set Predicate.  Have witness agree to prior sworn statement. (Date, place, to whom). This is important in any deposition. Have a chapter in the deposition on Date, Place, Under, Oath so you can lock witness in at trial.

3. Produce. Hand clerk the deposition and have it marked as exhibit. (Give copies to judge and opposition counsel).

4. Witness Reads. Hand marked prior statement to witness and have witness read.

5. Dangle Witness.  Howard Nations points out this can be embarrassing for the witness. He recommends  going to counsel table and futz  around while witness has to either continue looking at jury or look away.

6. Return. After letting witness dangle return to cross but to a new area of questioning. This is because we do not want the witness to return to impeached topic and rehabilitate through answer to similar line of
questioning.

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This post is from an outline we recently used for cross exam of an IME doctor in a rear end collision  case. As a rule we have taken the doctor’s deposition prior to trial.

If not discussed in direct, we begin by questioning the doctor on his treatment practice.  We elicit testimony on his experience in treating patients with similar injuries sustained by plaintiff. If he has little or no prior experience in treating similar injuries he lacks credibility in understanding the nature and extent of the injuries in our case.

Factors Typically Influencing Injury. Factors known to influence injury include: Gender, Age,  Pre-Existing Condition, Significance of Impact, Design of Target Vehicle, Heavy duty Bumper and/or Tow Bar on Target Vehicle, Size of Bullet Vehicle, Awareness of Impact, Out of Position Body (head turned and distance from head rest). We question the doctor on the specific injury influencing factors present in our case. This introduces how our case is unique in that we have specific facts that make injury more likely.

Treatment of  Patient for Cervical, Thoracic, Lumbar Sprain and Strain. Sprain and strain injuries are classic rear end collision injuries. There is nothing soft about soft tissue injuries. Sprain and strain injuries are real and it is important to revisit this in cross examination. “Define sprain.” We have the doctor recognize a sprain as an injury to ligament. We discuss how  like a rubber band, once stretched and or torn beyond their elasticity, they are not the same. “Define strain.” The same holds true for muscle damage. In significant trauma the muscle fibers can be torn. When they heal the scar tissue is not the same as the initial uninjured muscle.

Typical Course of Treatment. Often the doctor will say treatment for a few weeks and the patient is good to go. This is a cop out as there are grades of sprain and strain injuries. A grade three sprain is likely a permanent injury. Here we also question the doctor on referrals he makes such as physical therapy that are similar to the treatment our client has received.

Permanent Injury Cases. Here we discuss the case where the patient has permanent injuries. Often permanent injury cases involve older people who had asymptomatic degenerative joint disease going into the collision. “Have you ever had  a rear end collision patient who has not fully recovered?” Then discuss  why patient never fully recovered. “What common factors have you found in patients who have not fully recovered?” (Gender, Significant impact, Rigidity of bumper, Tow bar, Mass of bullet vehicle, Out of position body, Pre-existing degenerative disc disease). “What can be done for a patient who has continuing residuals from a sprain and/or strain?”

Loss of Enjoyment. “What activities are typically impacted for patients who have permanent sprain and strain residuals?” Here we tie in our client’s impacted activities to the patients of the doctor who have had adverse impact to their similar activities.

Subjective Presentation. “Do you rely on the subjective presentation of your patient to assist in determining if a sprain and strain is permanent?”  Most treating doctors practice the SOAP method. The first thing they do when they see their patient is note the subjective presentation of their patient. This is important because the patient reports what her condition is. Here we can pursue this with the IME doctor by discussing why the doctor listens to and believes the patient. “How much validity do you give to the input of your patient on continuing residuals?” “At what point do you conclude your patient has permanent residual pain and limitations?”

Your IME Practice. Now we change from treating doctor questions to IME doctor questions. “What percentage of your medical practice is forensic examinations and testimony?” “How many IME’s do you perform in a typical week?” “How much do you charge per hour for an IME.” “For deposition testimony?” For trial Testimony?” We usually stop after these basic charge per hour questions, and often we do not bother with them. Our experience is the jury knows the doctor is charging and it is a waste of time to impeach on money charged to do forensic work. The exception is when the doctor only has an IME practice, it is almost only defense, and the doctor make hundreds of thousands of dollars a year. We do ask what percent of IME work involves defense v plaintiff work.

Select Discussion of IME. At this point we cover the IME discussing favorable portions and ignoring everything else. We alternate having the doctor read select favorable portions with me reading and the doctor agreeing to select favorable portions. We always cover favorable portions of the objective exam.

The Close. Depending on the doctor and what happened at the deposition we will close with a hypothetical patient with the doctor assuming he is a treating doctor. The hypothetical fits our client’s facts. We then ask the doctor if he agrees the hypothetical patient has a permanent … injury. If the doctor is not going to go with us we close on favorable objective findings from his IME.

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In many personal injury cases the insurance company for defendant pays a defense medical doctor to do a CR 35 forensic exam of plaintiff. When the forensic defense doctor testifies he predictably states the injuries should have healed in a few weeks, there are little or no objective symptoms, plaintiff has reached maximum medical improvement, and there are no residual injuries. This post discusses how I deal with the defense medical expert.

Take Doctor’s Deposition. The CR 35 requires I receive the defense exam report. Although I use the report for cross examination, I  go beyond the report. To effectively prepare for cross examination I take the defense doctor’s deposition. At the deposition I cover the following:

You as a Treating Physician.  I ask questions that go to doctor’s practice as a treating physician. When were you a treating doctor? Where were you a treating doctor. Have you treated patients who were traumatically injured?  Surgery and non surgery? Did you ever see a traumatically injured patient for more then 10 medical visits? More then 20? How long was a typical visit?  Do you use SOAP notes? Agree symptoms may wax and wane. How much validity do you give to your patient’s subjective presentation? Did you ever treat a [patient with similar injury as client] who never fully recovered from their injury? Discuss. How do you determine if your patient has a permanent injury?

Factors Influencing Injury. Let’s discuss factors that influence injury. Agree gender is a factor (studies show women more likely injured then men). Agree age is a factor (older the more difficult traumatic injury). Pre-existing condition (injury more likely to degenerative discs/joints). Significance of impact (harder the more likely injury). Applied to rear end collision. Design of target vehicle: Rigidity of bumper (more rigid more likely injury). Tow Bar (more likely injury). Size of Bullet Vehicle (larger=more mass=more injury). On the body. Awareness of impact (unaware =no bracing=more injury). Out of position body (head/body turned=more injury). Head away from head rest (= more neck injury).

Medical Terms/Articles. What is a strain? (tearing of muscle and new scar tissue is not the same). What is a sprain? (over stretching of tendons and ligaments that do not get back to original tightness). Does a sprain/strain involve both conditions? Copy medical articles/abstracts that support your client’s injury presentation. Introduce to doctor at the deposition. Discuss. Mark as exhibits.

Staying Current. What  medical publications do you subscribe to to stay current? What internet sites do you regularly read? Name CME seminars you have attended in last 24 months. When was last time you published in peer reviewed journal. Citation.

IMEs Generally. Percentage of cases for defendants v plaintiffs. Protocol for IME discussed. (Number in a day, week, year). Amount charged per hour (Hourly for IME, for deposition, for trial). Have you ever found an injured plaintiff to be permanently injured? Discus. Agree you get subjective presentation. (Same as when treating and subjective presentation allows for understanding of condition from injured person/patient). See person only once. Exam lasts 10/15 minutes. Not there to help patient recover.

IME Specifics. Cover favorable portions of IME. Have doctor read favorable portions into record. Especially impact facts, subjective presentation, range of motion limitations, and objective findings. Have doctor discuss candor of client. Honest, straightforward fully cooperative. Don’t bother with opinions and conclusions that hurt as deposition is the time to set the table for cross examination at trial.

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