Litigation 101 Cross Examination

Importance of motivation

Written by: Thomas A. Downie January 16, 2023 Read Time: 2 min

This post is part of a series. Here is the full series list:

This is the third 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.

In the first cross-examination series, I suggested ways of inquiring into a witness’s state-of-mind, i.e., the witness’s reasons, intentions, or motivations. See Cross Examination 4, Cross-examining on state-of-mind issues. The Maelstrom case is another good example. Maelstrom’s manager acknowledged that both he and his superintendent were on site daily to “check on things” and “work out details.” Clearly they could have participated in the decision to use an acetylene torch for the tank removal. As plaintiff’s counsel, I wanted to prove that they did participate in the decision. One way of doing so was to establish the parties’ respective motivations—Maelstrom’s and CutRight’s. From that state-of-mind evidence, the jury could reasonably infer that they acted in accordance with those motivations in deciding to use a torch instead of the saw.


Q       In removing tanks or machinery in these buildings, why didn’t you just always use a saw?

A        Cost.

Q       How does it affect cost?

A        It’s higher, more labor intensive.

Q       The use of the saw is?

A        Yes.

Q       Takes longer?

A        Takes longer.

Q       And, as a consequence of the labor costs associated with the longer time, the overall removal process would cost more?

A        That is correct.

Q       Using a torch also gets the job done faster? I mean, the project gets completed quicker?

A        Quicker method than a saw, yes.

Q       What was the basis of payment to CutRight? Was it a cost-plus contract. Or was it a quoted price? What was it?

A        Hard number.

Q       Meaning CutRight proposed to do the job for one flat sum?

A        For x number of dollars.  Then we determined — we had spelled out the scope of the work.  We both agreed upon it and he got paid x number of dollars, win, lose, or draw.

Q       So, under that method of compensating a contractor, if it takes him more time to do the job than was anticipated, it would end up affecting his profit margin?

A        That is correct.

Q       Maelstrom would not pay more?

A        Not unless there was a legitimate, unforeseeable condition that was not seen or not spelled out at bid-time.

Q       Was the construction project on a schedule from your standpoint?  In other words, were there instances where you wanted to get certain work done by a certain time or within a certain time?

A        In some cases, yes.

Q       Were there any situations where you were trying to expedite?

A        No, we weren’t on any real tight timetable at all.

Q       How about CutRight’s demolition work?

A        It was — I wouldn’t say it was a tight timetable, but we did have a specific timetable when he had to be out of there so we could start to get the building closed-in by winter.

Q       The objective was to close-in the building before winter came?

A        Yes.

Q       So, if I understand your testimony, CutRight’s demolition work, among other work, needed to be out of the way so the building could be closed-in?

A        Correct.

Q       So CutRight’s work was on a reasonably expedited basis?  How would you put it?

A        CutRight had a contract to do a certain amount of work and we gave them a reasonable timetable to get that work done.

Q       Were they on schedule, behind schedule?

A        They were pretty much on schedule.  They took a little prodding, but we kept them there.

Q       The prodding you were doing was to keep them on schedule — to keep them from being delayed?

A        The prodding I was doing was to make sure that CutRight kept four to five men on the job until I felt they could reduce manpower and still meet the end result.

These questions established strong motivation on the part of both Maelstrom and CutRight. Maelstrom’s manager acknowledged that using a saw would “take longer,” and thus “the overall removal process would cost more.” I tried for a further admission—that Maelstrom was behind schedule and pressured CutRight. On this, the deponent pushed back, saying “I wouldn’t say it was a tight timetable.” Yet his testimony was helpful. He said that Maelstrom needed “to close-in the building before winter came.” Thus, “the prodding I was doing was to make sure that CutRight kept four to five men on the job.” That degree of urgency was ample motivation for Maelstrom to approve the use of a torch for tank removal—a “quicker method than a saw.”

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.