Tales from the courtroom trenches

I have an energetic young lawyer in the office right now. He is very enthusiastic about being the best trial lawyer he can be. He always has good questions for me and keeps me on my toes.

Last week, he asked: “When you are cross examining an adverse witness, how do you know that you have done a good job?” That was an excellent question. I told him that there are many signs that you have been effective in your cross examination. Ideally, you are able to get the witness to make some damaging admissions that help your case. Maybe he or she makes statements that contradict prior statements and render their evidence less credible.

However, by far, the very best indication that you have bested the witness is when he or she completely loses their cool.

Of course, that leads to a story, a true story actually. It was my second year of practice as a lawyer. I had honed my trial skills as a prosecutor in the Crown Counsel’s office at 222 Main Street in Vancouver. In my second year, I started to do civil trials.

I found myself representing a young man who was suing his former employer for wrongful dismissal. His former employer was a fellow from the “old school” where “it was his way or the highway”. He ruled his place of employment with an iron fist. There was no negotiation or discussion with him. On top of everything else, he was super arrogant.

I started off my questioning with easy, non threatening questions that he was able to answer easily, which boosted his confidence. Then I started to narrow my questions to the subject matter of the lawsuit. He started to puff out his chest. In the way he answered the questions, he made it clear that he could not understand why he didn’t have the absolute right to fire any of his employees at any time for any reason. He just reeked of arrogance and self importance.

That is when I knew I had him. I started to ask him about his management style, at first in an inquisitive tone and then, as I got a reaction, increasingly more challenging. He started to lose it. His face turned red, then purple. His voice started to rise. The veins at his temples started to bulge and the muscles in his neck looked like an accordion.

And then… the moment every trial lawyer dreams about, our Stanley Cup, the Everest of those of us who argue for a living…the employer left the witness box. He actually climbed out of the witness box. His size 12 penny loafers hit the floor of the Courtroom and he started to stride purposefully in my direction. There was less than ten feet between us. I had no idea of what I would do if he reached me. I am pretty sure that the employer had no idea of what he would do either. I am sure that he just wanted the questions to stop.

Well, I never did find out what I would have done if we ended up eyeball to eyeball, as a burly sheriff wedged himself between us.

After a brief recess, and after a stern warning from the Judge, the employer got back into the witness box and promptly fell apart. All the arrogance was gone. All the bravado had deserted him. I was left with a pudgy faced toothless lion who was so timid he gave me every answer I wanted from that point on.
The result of the trial was a foregone conclusion, once the employer gave up the ghost.

So, there you go. How do you know that you have done a good job ? The ultimate is when the witness loses it so bad that they forget where they are and wants a piece of your hide.