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Cross-Examination of the Witness That Cannot Be Cross-Examined

If you are a personal injury lawyer who regularly tries cases you have at some point in your legal career, encountered a witness, most likely defendant’s medical expert, that you just cannot effectively cross examine even if your technique of cross-examination is sound.

After you walk back to the trial table with your tail between your legs, what do you do? I found an old 1988 ABA article that shows how one lawyer handled in closing argument the witness that the lawyer could not effectively cross examine at trial.

In this espionage case where “Cannon” is alleged to have left a container of microfilmed defense secrets in a telephone booth outside the bar to be picked up by a Russian agent, the defenses are alibi and mistaken identification. The witness is Special Agent O’Rourke of the FBI who had been staking out the bar and gave a positive identification of Cannon as the woman he saw in the booth. Here is the transcript of the relevant portion of his closing argument:

“You remember that Agent O’Rourke — Special Agent O’Rourke — from the FBI. You saw what a frustrating time I had with him. I cross-examined the man for an hour and a half. And I never laid a glove on him. I never touched him. (Editor’s note: Incredibly gutsy to admit this with such a critical witness, don’t you think?) Every time I thought I had him where I wanted him, he would slip away. No matter what question I asked, he had some slick answer. He was ready for me and he slipped away.

I wondered where I had seen that man before.

Now understand that I did not know this O’Rourke. No one had ever introduced him to me. I had never met the man. I had no idea he was going to testify in this case. I had never talked with him before. No one had even pointed him out to me. But when I asked him questions, somehow he seemed familiar. Somehow I knew I had seen him before.

I grew up on a farm in Alabama in the 1920s. And I want you to know that entertainment — the kinds of things that we think of as entertainment — was scarce on a farm in Alabama in the 1920s. We had no television because there was no television to be had. We did not even have a radio in my house until I was 16. We went to movies every two or three months if we were lucky. Mainly we entertained ourselves. We played catch and baseball and other games outside. And we waited all summer long for the County Fair.

I don’t mean the State Fair. We didn’t have the money to travel to the State Fair. I mean the County Fair. They held it in September after the heat of summer, and they held it in the county seat.

They had some rides they brought in on wagons and set up, but it was a small fair, so the rides were mainly for the little kids. Then they had games like the one where you throw a baseball at a pyramid of wooden milk bottles and try to knock them over. We knew that all the games were fixed. We knew that those bottles had lead weights in the bottom so that they would be hard to knock over, but we tried anyway. And we would pay to take a swing with the big wooden sledge hammers and try to ring the bell.

But there was one game I remember especially that all the teenage boys wanted to play. You would pay 10 cents for a chance to win $10. They would take a little pig, and grease him up from head to toe with axle grease. And they would put him in a pen. For 10 cents you could get in the pen and try to catch the pig. If you could catch that pig — and hold him — you would win $10.

I paid my dime and when it was my turn I got in the pen and tried to catch the pig. When he ran by, I quickly reached out with my hand and grabbed his leg — and he slipped away. I wrapped my arm around him, and he just squirmed one time and he was gone. He squirted out of my arms. I jumped on him and tried grabbing him by the ears. He shook his head and ran away, and I was left lying on the ground. No matter what I would do, that pig would slip away every time I thought I had him.

That’s where I’ve seen that O’Rourke before. He’s just like that greased pig.”

Like many great stories, the jury knows where the story is going. But if told right, it is one of the most effective parts of the metaphor. The jury anticipates it is coming but they still wait to hear the punch line. Even knowing it is coming, they laugh when the line comes. But the best part of this closing is the final line that changes this from a really good closing story to a great one:

“Now what I want to know is who greased him up that way.”

I love this line for two reasons. One, from the story telling standpoint, it makes one more telling point the jury did not expect as it saw the punch line coming at a time when the lawyer certainly had the jury’s attention. But perhaps more importantly, maybe O’Rourke came across as a decent guy, he was an FBI agent after all. This line takes the sting out of the personal attack on the witness while still maintaining the benefit of the metaphor to discredit the witness.

Good stuff.

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  • http://www.cooverbarr.com Gabriel A. Riveros

    Ron:

    Great article! The point is well taken and often times the impact is in the delivery. The storytelling aspect in closing is what separates the good trial lawyers from the great. It is an amazing work of art in motion to watch when it happens and a train wreck when delivered incorrectly. I think to a large extent, it comes intuitively to a few and eludes others no matter how many books and seminars they attended on trial technique. Incidentally, I am making a go at this bloggin thing myself; if you want to visit:

    http://md-dcpersonalinjurylaw.blogspot.com/

    I will also be starting one on real estate/construction law for MD & DC.

  • http://www.myshingle.com Carolyn Elefant

    Ron,
    Just wanted to let you know that I really enjoyed this post and linked to this at MyShingle. What great inspiration for new lawyers who are so afraid of making mistakes or being incompetent to see that even the most experienced lawyers can have a bad day – but they can turn it to their advantage!

    Carolyn Elefant

  • Ron Miller

    The two comments above are made by two other blog authors. Carolyn Elefant, is the author of MyShingle, which may be the most prolific lawyer blog on the web. The second is from Gabe Riveros, who frequently comments on the Maryland Personal Injury Lawyer Blog, who just started his blog “Maryland DC Personal Injury Law Blog” last week. Both of these blog should be on your list of favorites.

  • http://www.susancartierliebel.typepad.com Susan Cartier Liebel

    Ron,
    This story is an inspiration to all lawyers. I remember the first time in closing argument I wanted to make a point and said, “This is the witness’s swan dive.” (Instead of ‘swan song.) Instead of a dramatic ending, I had the other side correcting me while the judge grinned and the sheriff’s covered their mouths in pretend coughs. I turned five shades of fuscia. We all survive.

    Again, great story.