How far is enough?

Thomas Downie
Fri, 26 May 2023 16:22:12 +0000
Litigation 101, Cross Examination

This post is in a series that offers techniques and tips when it comes to Cross Examination. Here is the full list:

1. Series two introduction

2. Knowing what you need

3. Importance of motivation

4. How far is enough?

5. Affirmative defenses

This is the fourth 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 this excerpt, I’m continuing to question Maelstrom’s manager about the decision to use an acetylene torch to remove the storage tanks, instead of the safer saw method. The only hard evidence we’d obtained was a report by an independent testing firm, Precision Lab. After the explosion, Precision Lab took samples from the four remaining storage tanks and found residue of volatile substances. I introduced the report and quoted the salient finding for the deponent. You can evaluate his response, and my reaction.

BY MR. DOWNIE


Q       Precision Lab took samples from four of the tanks?


A       It appears that way, yes.


Q       Were you there when Precision Lab came in?


A       No, I told you before that I was not even aware of this ’til it crossed my desk.


Q       I’m sorry — I did not understand that from you. You’d said that the purchasing guy arranged it with Precision Lab. I didn’t understand that you were —


A       And I told you I had no knowledge that he’d made that arrangement until I saw this report.


Q       I apologize. According to Precision Lab’s report, “The sample from Tank 1 was a soft, organic, glue-like material with a heavy solvent odor.” You personally inspected and looked into the ports in each of the tanks, correct?


A       Yes, I did.


Q       And you did that prior to the beginning of the work on the tanks?


A       That is correct.


Q       And, according to your testimony, you smelled nothing?


A       That is correct.


Q       And you saw nothing of a soft, glue-like material?


A       There was some dust and dirt in the bottom of the tanks, but there was nothing like that down there. I testified previously that the tanks were clean as a whistle.


Q       Were you present at the time of the incident in which Mr. Johnson was injured?


A       I was in my office when it happened.


Q       Also, Mr. Miller [Maelstrom’s field superintendent] was on site as well?


A       Yes, he was.


Q       Mr. Miller was functioning as your field superintendent; is that correct?


A       That is correct.


Q       And he was the Maelstrom representative in charge of monitoring what the subcontractor was doing –- the demolition work in progress?


A       He would — he would work with the subcontractor to make sure that the work was progressing properly and within specification.


Q       He worked for you — he reported to you?


A       That’s correct.


Q       But, of the two of you, he was the one who most frequently dealt with the subcontractors on the job?


A       That’s correct.


Q       You were involved with the subcontractors in the bidding process?


A       Correct.


Q       And in the awarding of the contract, the preparation of the subcontractor purchase agreement?


A       That is correct.


Q       But in terms of dealing with the subcontractors and the actual carrying out of the work, it was Mr. Miller who was more frequently involved?


A       Right. I would go to the field a couple of times a day and he and I would walk the jobs. I would discuss with him things that I had concerns about, or if we decided we were going to make a change in an area. I would go over that with him and he would deal with the subcontractors accordingly.


Q       And, if I understand what you said earlier, one of his primary roles was to make sure that they did the work in accordance with the subcontractor purchase agreement or change order, whatever they were working under?


A       And the drawings and specifications.


Q       Making sure they were conforming to all of those? Right?


A       Yes.


Q       Now, is it your understanding that Mr. Miller was there at the start of the tank removal on the date of the incident?


A       I believe that he was.

This excerpt covered two significant points. The first, Precision Lab’s finding of volatile residue in the storage tanks. On that point, Maelstrom’s manager stayed with his previous story. He’d “personally inspected” the tanks before the incident and “saw nothing of a soft, glue-like material.” He added, as though reminding me, “I testified previously that the tanks were clean as a whistle.”

In retrospect, I could have challenged that testimony. I could have reiterated Precision Lab’s finding (I’d just quoted it in the record) and demanded an explanation. In another approach, I could have taken him through his inspection of the tanks and confronted him on the details. At the time, I was relatively happy with his story. The manager was so insistent, and his story was so at odds with the apparent facts.

The second significant point in the testimony concerned the role of Maelstrom’s superintendent, Mr. Miller. He was on site every day, including the day of the explosion. One of his primary roles was to ensure that the subcontractor was performing in accordance with specifications.

I later deposed the superintendent, and he did not support the manager’s story about inspecting the tanks. Mr. Miller said he met regularly with the manager, but didn’t recall learning that the tanks were clean. He did remember knowing that CutRight intended to use an acetylene torch for the job. I then deposed CutRight’s owner, who said the manager knew from the start that a torch would be used. He said using a saw for the job would have taken longer and been much more costly.

The next post in the series will illustrate another useful purpose of cross-examination—questioning about a defendant’s affirmative defenses.