Litigation 101 Cross Examination
Knowing what you need
Written by: Thomas A. Downie December 28, 2022 Read Time: 3 min
Knowing what you need
This post is part of a series. Here is the full series list:
- Series two introduction
- Knowing what you need
- Importance of motivation
- How far is enough?
- Affirmative defenses
This is the second post in cross-examination series two. The series features a deposition in a negligence case and illustrates a different style of questioning. See Cross Examination series two introduction.
Maelstrom’s manager-in-charge of the renovation project had set the stage. The manufacturing process used solvents and those solvents were volatile. The manager knew about the volatile solvents. Then an acetylene torch was used in removing storage tanks and a tank exploded.
The next part of the cross-examination established the scene of the explosion. You need to know a few facts. The demolition contractor, CutRight, was to remove old storage tanks. A single tank was six foot high and five foot in diameter—over 1,000-gallon capacity. When the tanks were in operation, piping connected one tank to another. CutRight’s contract called for removal of any piping. It wasn’t clear whether the piping to these particular tanks was previously removed.
As explained in the intro, I didn’t have many evidentiary documents. I used a conversational approach rather than a confrontational one, asking open-ended questions.
BY MR. DOWNIE
Q What was in these five tanks, as you understood it?
A One of them was resin. The others — I have no clue as to what they were used for.
Q Had they been resin tanks, or something else?
A They were clean as a whistle, so it was hard to tell what was in them.
Q When you say they were clean as a whistle, you looked in them?
A We inspected them. They had hatches on the side and the top that had been taken off, and the tanks had been cleaned. The inside was just metal that was rusting a little bit.
Q You personally inspected them?
A Yes, I did, when they told me that those tanks existed because it caught everyone by surprise.
Q Why did you inspect them?
A To see the condition of the tanks and what we had.
Q Was it important to you to know what, if anything, was inside them?
A Yes.
Q Why?
A The method of taking them out.
Q How would that affect the method of taking them out?
A Well, whether you could cut them with a reciprocating saw or you cut them with a carbon dioxide process or use regular cutting torches.
Q That’s like an acetylene torch?
A Yes.
Q What would the criteria be for deciding which method of taking them out?
A Depending upon what chemicals were in the tank, if any.
Q Now, you mentioned three methods. One is cold cut – a saw. The last one was a torch, an acetylene torch. What was the one in the middle?
A They use, like, a nitrous oxide for cutting purposes.
Q Forgive me. I’m not familiar. What is a nitrous oxide cutting process? Is it a kind of torch, or is it something else?
A It’s a kind of torch.
Q How does it differ from the acetylene torches?
A There’s little or no heat.
Q Alright. What does “cold-cutting” involve?
A Usually using a reciprocating saw.
Q Under what circumstances would you decide to use a saw?
A When I wasn’t sure what was in those tanks originally. That was the safest, best method to cut the tanks up.
Q Okay.
A The tanks were clean. We did not take the time to get them tested, so I instructed CutRight to use a reciprocating saw to get those tanks out of there.
Q With a saw, is the — well, let me ask it a different way. Is there a danger associated with, say, an acetylene torch that is avoided by using a saw?
A There’s less danger with a saw.
Q And what is the danger that is lessened by using the saw?
A Heat. Heat and an open flame.
Q So the danger you would be concerned about would be something catching on fire?
A Yeah, correct.
Q The danger of something catching on fire or exploding would be less with a saw than with an acetylene torch?
A Definitely.
Q Substantially less risk?
A Yes.
Q You were the renovation manager. Did you oversee what your subcontractors were doing?
A I was in the field on a part-time basis. I had a full-time superintendent on site, and I was still in the field two or three hours a day just checking on things, getting measurements, working out details, those kinds of things.
Q Now, you said you specified a saw because you weren’t sure what was in the tanks. Do I have that right?
A We specified a saw. Like I told you previously, we inspected the tanks. The tanks were clean. We decided not to test. We decided just to go ahead and use the saw method to remove the tanks.
Q So, even though the tanks appeared to you to be clean as a whistle, as you put it, you specified a saw nonetheless, because you hadn’t tested?
A That’s correct.
Q You said you personally inspected the tanks. Did you look into the ports?
A Yes, I did.
Q Did you use a flashlight so you could see what was inside?
A Yes, I did.
Q And you did that with each of the tanks?
A Each of the tanks.
Q Were they connected by piping?
A Some were interconnected, yes.
Q Did you do anything to inspect the piping?
A We looked where the piping came into the tanks, we looked up into the pipe and they were as clean as the tanks were.
Q Was there piping connecting the tanks?
A That piping was gone already.
As before, my questions were conversational, yet they achieved several points on my “admissions list.” The storage tanks could be removed via alternative methods. Maelstrom had specified a “cold-cutting” method, i.e., a saw. Maelstrom specified that method because these tanks had not been tested by a lab.
At some point in the work, the decision was made to switch to an acetylene torch instead of the saw, likely triggering the explosion. That change presented a potential obstacle to the injured worker’s claim. Maelstrom could assert that the decision was made by the contractor, CutRight. If so, we might be relegated to proceeding against the smaller company, plaintiff’s direct employer.
Two unexpected results in the cross-examination altered that dynamic. One, Maelstrom’s manager testified that he and his full-time superintendent were on site daily to “check on things” and “work out details.” That made it likely that Maelstrom was involved in the decision to switch to a torch instead of the saw.
Two, Maelstrom’s manager testified that he’d “inspected” the tanks, finding they were “clean as a whistle.” My first instinct was to challenge that testimony. We had evidence that the tanks contained volatile substances, as you’ll see in a later excerpt. But instead, I drew out the “inspection” scenario. The deponent wanted to go that route and it suited us just as well. The important point was simply that the witness—Maelstrom’s manager-in-charge—had personally inspected the tanks.
These points are explored further in the next excerpt.
About The Author
I’ve litigated class actions and other complex cases for many years, roughly divided between plaintiffs’ practice and defense representation. My undergraduate degree is from Penn State University and I earned my law degree, cum laude, from Cleveland-Marshall College of Law. In my senior year I was elected Editor-in-Chief of the Cleveland State Law Review.