Series two introduction

Written by: Thomas A. Downie December 10, 2022 Read Time: 5 min

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

This post begins the second series on cross-examination. This series will illustrate a different style and approach.

The first series featured trial testimony from the Holocaust diaries case. See Cross Examination: An introduction. Both the trial setting, and my posture as a defense lawyer in the case, demanded short questions and small steps. The cross-examination had to be careful and controlled.

This second series will feature a pretrial deposition in a negligence case in which I represented the plaintiff. Some points remain applicable. Short questions are more effective in both settings, as are small steps in a sequence or logical progression. Listening attentively to the witness’s answers is always essential.

What necessitated the different style in this particular deposition was the lack of “foundation stones” with which to prompt admissions. Usually we would obtain production of evidentiary documents before a merits deposition and use them in the questioning. In this case, discovery was at a stand-still and only a few basic documents had been produced. We decided to proceed with depositions of key witnesses in the hope of getting the case off the ground.

The defendant, Maelstrom Corp., was renovating a chemical-manufacturing plant. The project required removal of old machinery and Maelstrom hired a demolition firm, CutRight, for that work. Partway through, five empty storage tanks were discovered. CutRight began to detach them using an acetylene torch and an explosion occurred. CutRight’s worker, Harold Johnson, was seriously injured.

Earlier in the case, I conducted an “elements analysis.” See Elements and evidence analysis. The analysis identified legal and factual issues, and I used them to construct the complaint. See Pleading the element of duty.

The analysis also generated an “admissions list” for cross-examination. The nature of Maelstrom’s manufacturing business and the circumstances of the explosion suggested key questions and inferences. What did Maelstrom know that made the risk of harm to the plaintiff foreseeable? What should Maelstrom have discovered upon reasonable inquiry? The core questions—what would a reasonable person in Maelstrom’s position have known, or looked into, or guarded against?

The deponent in this deposition was Maelstrom’s manager-in-charge of renovating the plant. I didn’t have many evidentiary documents, so I used a conversational approach rather than a confrontational one. Open-ended questions, letting the witness state the facts. If I’d used leading questions—suggesting answers to him—it would have caused him to balk.

The examination obtained helpful testimony. Notice the sequence of the questions, which gradually guided the conversation. Often I could take cues from the witness’s answers. The manager had responsibility for the entire renovation project and wanted to present himself as competent, safety conscious, and reasonable. My open-ended questions allowed him to cast himself in that light. Still, I was able to guide him toward logical, inculpatory conclusions.

BY MR. DOWNIE

Q You were hired by Maelstrom to oversee the modernization in these areas of the facility, do I have that right?

A That is correct.

Q Did the nature of that work require you to have some understanding of what manufacturing operations would be going into those areas?

A Well, I would watch the existing manufacturing operations and understand the equipment; and once I understood what the equipment had to do, then I could back off and figure out, along with the architects and the engineers, what the design should be.

Q Do you have an understanding of the types of materials that are used in manufacturing those chemical products?

A I know what they are, but as far as their chemical makeup, I have no idea. I know that we use resins, we use polyesters, those kinds of things.

Q In the design of the plant, is there a fire protection system?

[I didn’t know the answer to this question but it seemed likely. As it turned out, the question opened a door.]

A Yes, the entire complex has sprinklers. The new section has a state-of-the-art fire, smoke, heat-sensing system, along with various sprinkler systems.

Q Is the installation of a state-of-the-art fire protection system simply a matter of protecting the building, or does it have some relationship to the kinds of materials that are used and stored there?

A Both.

Q In what sense is it related to the kinds of materials used and stored there?

A Well, if you’ve got a fire, of course you want to put it out immediately to save lives, and, secondarily, buildings and/or product.

Q So you’re interested in safeguarding both the building and the products and materials?

A Well, lives first, then the building, then the materials, yes.

Q I’m sorry — I was not meaning to prioritize them. Are the materials — or some of the materials — flammable, as you understand it?

A In which division of the plant?

Q Let’s take the liquid division first.

A Liquid is very flammable.

Q Without getting into patented or technical information, can you give me an idea of the materials that are flammable?

A We use a lot of solvents in the manufacture of the liquid products.

Q Is that different than in the non-liquid division?

A Totally.

Q In what way are the non-liquid products different?

A They’re not as volatile as they are in the liquid division.

Q What do you understand “volatile” to mean?

A Something that has a low flash point.

Q In layman’s terms, something that would be very flammable, as opposed to just flammable?

A Correct.

Q And the solvents that are used in the manufacture of the liquid products — are they, as you understand it, volatile?

A Yes.

Q You said — and, again, stop me if I misspeak or put the wrong words in your mouth, because I don’t mean to do that. You said, in your first three months of employment with Maelstrom, that you were involved in the design of the new operation. Is that correct?

A The design had been an ongoing situation. In the first three months, I was there to get the construction organized. I sat in design meetings with architects and engineers so that I could understand what the machinery did, to understand the function of the operation.

Q In that period, did you gain some understanding of the manufacturing process for the liquid products?

A Yes, I had a broad understanding of it.

Q For example, the fact that they would use solvents in the manufacturing operation, is that something you learned in that first three-month period?

A No.

Q You already knew that?

A Yes. I knew solvents were used in manufacturing those products.

Q And did you, then, gain further information about the use
of solvents in the manufacturing process, during that three-month period —

A Somewhat.

Q — at Maelstrom?

A Somewhat.

Q When did the liquid manufacturing begin? I’m not going to hold you to some exact date on this.

A I believe it was April or May. It was early in the year.

Q So, at any rate, during your employment at Maelstrom, you had a general idea of the manufacturing process for the liquid products?

A Yes, I did.

Q And, in that period of time, you understood, among other things, that solvents would be used in that manufacturing process?

A Yes, I did.

Q And you understood by then that solvents were volatile?

A Yes.

These questions set the stage for later admissions, as you’ll see. Yet, in themselves, they established a useful foundation. Maelstrom’s manufacturing process used solvents, and those solvents were volatile. The manager knew about the volatile solvents. They had “a low flash point,” as he put it. In layman’s terms, they were “very flammable, as opposed to just flammable.” Despite this, an acetylene torch was used in the demolition work and a storage tank exploded. Later excerpts will tie these points together.

For now, I’ll point out two “techniques” illustrated by this first excerpt. One technique could be called qualifying (or limiting).

“I’m sorry — I’m not meaning to prioritize them.”

“Are the materials — or some of the materials – flammable?”

“Without getting into patented or technical information . . .”

“You said — and, again, stop me if I misspeak or put the wrong words in your mouth, because I don’t mean to do that . . .”

With these qualifiers, I assured the witness that I was asking fair questions, rather than trying to put inaccurate words into his mouth. The assurances were genuine on my part. I don’t try to confuse witnesses or trick them into saying things they don’t believe. I’m not claiming any moral high-ground on this point—simply that it’s unwise and ineffective to trick a witness. But see My Cousin Vinny.

You can use a similar, qualifying approach with regard to dates. “When did the project begin? I’m not going to hold you to some exact date on this.” Allowing imprecise answers about dates frees the witness to testify about the substance of events. Unless, of course, the dates lie at the heart of the issue.

Another tool in cross-examination is to immediately change the subject after an important admission. The new subject shifts the focus and the witness is less inclined to revisit and potentially retract the previous testimony. Here’s an example.

Q And the solvents that are used in the manufacture of the liquid products — are they, as you understand it, volatile?

A Yes.

Q You said, in your first three months of employment with Maelstrom, that you were involved in the design of the new operation. Is that correct?

Try to transition to the new topic quickly and smoothly. Flag two or three benign topics in your notes so you can turn to them in these situations.

The cross-examination of Maelstrom’s manager will continue in the next post.

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.