Trial Attorney Blog

Rule No. 7 of 12: The successful cross-examiner listens to the witness’s direct testimony.
When a witness is called by the other side to testify against one’s client, one must be very careful to listen to that witness. Even if counsel has had the benefit of taking the deposition of the witness and has a beautiful outline to be used for anticipated cross of the witness, counsel must nonetheless listen very closely to the actual testimony given before the jury. It may be that the witness changes their testimony or offers less damaging testimony than was anticipated. It would make little or no sense to adhere to a pre-prepared outline script in such a situation. Counsel must be willing to adapt a proposed cross-examination outlined for any witness. The best way to do this is to listen carefully to what the witness is saying.
During cross-examination, counsel must keep his notes to a minimum because taking notes can be distracting and can interfere with listening to what the witness is saying. If proper investigation and discovery has been done, counsel should know what the witness will say in any event, but there have been many cases where witnesses do slightly alter their testimony, thus causing for a change in the cross-examination of that witness. Listening is the key to this rule.

Rule No. 6 of 12: The successful cross-examiner stays calm and collected whatever happens.
During the testimony of a witness, particularly where the witness is providing very damaging testimony, counsel cannot flinch or otherwise demonstrate through body language that his client’s case has been hurt. Counsel must always stay calm and collected because body language many times can betray counsel’s representation of their client.
When a witness is being evasive or refuses to answer questions or asks counsel questions from the witness stand, counsel must not argue with the witness or answer any of their questions, but rather must stay calm and collected and stay in control of the witness. As long as counsel consistently reflects a professional demeanor, this communicates to the jury confidence in one’s cause.

The Georgia injury lawyers have written before that with the growing popularity of ATV’s or All-Terrain Vehicles, serious injury and death cases are on the increase in Georgia, especially among children. Yesterday, we read about a 12-year-old Alto, Georgia girl who was killed last Friday night about 8:30 p.m. in an accident involving an all-terrain vehicle in Banks County. According to the Georgia State Patrol the girl was driving the vehicle when it overturned on private property. A 15-year-old passenger, who was not identified, was injured and taken to Northeast Georgia Medical Center. Unfortunately Georgia is one of only five states with no ATV safety legislation. Between 1982 and 2003 there were 177 fatalities involving ATV’s. Of the 177 deaths, one third were children under 16. In 2004, there were 12 fatalities involving ATV, 50% of which were children under 17.

Almost all ATV accidents involving fatalities or serious injuries occur while violating one or more of the Consumer Product Safety Commission’s “Rules of ATV Operation”. These rules are as follows:

A. Children under sixteen should not ride adult-sized ATV (90 + cc’s).

Rule No. 5 of 12: The successful cross-examiner never asks an open-ended question such as “why” unless it does not care what the answer is.
In discussing rule 4 above, we gave a good example of why you do not ask open-ended questions. If you ask a witness “why?” they will tell you. In other words, they will give a speech, which usually will hurt your client. If you are cross-examining a witness, by definition, that means that the witness has been called by the other side to offer testimony against your client. If you ask them an open-ended question, you are giving them a chance to speak. Thus, you should usually ask questions that ask for a yes or a no response. You should not even ask those questions unless you know what the answer is going to be.
In some circumstances, you really do not care what the answer is. For example, if a witness has been paid by a magazine for their story and they are alleging that a celebrity defendant has allegedly committed a sexual assault against their friend, you can ask them all kinds of questions about, “Isn’t it true that they were paid for their testimony?” etc. Of course, they will deny it, but if you have evidence that they hired an agent, were paid by the magazine, etc., then it does not really matter what they say because they will be sufficiently impeached before the jury in any event. Always ask leading questions that suggest the answer you want. Avoid open ended questions such as why or how and you will follow this rule.

We have previously written about dangerous toys containing magnets which can be swallowed by small children. Last week, toy manufacturer Mega Brands America Inc. consented to pay a $1.1 million civil penalty for failing to promptly report promptly dangerous magnetic building sets which it manufactured. The sets have been blamed in the death of a child.

As we reported, tiny magnets can fall out of toys and be swallowed or inhaled by children. If more than one magnet is swallowed, they can attach to each other and cause intestinal perforation, infection or blockage.

In December 2005 Mega Brands, formerly Rose Art Industries Inc., reported the death of a 22-month-old child to the CPSC. He died when he swallowed magnets from a Magnetix set, which attached to each other in his small intestine and created a fatal blockage.

Rule No. 4 of 12: The successful cross-examiner never asks a question unless he knows what the answer will be or doesn’t care what it is.

Unless counsel is fully prepared, has fully investigated the case and has conducted necessary discovery, this rule is difficult to follow. On the other hand, if counsel knows everything about the case then there is no reason why this rule cannot be followed and, in fact, it should be followed in all cases. Otherwise, disaster can strike.

There is an old story that illustrates the rule. A witness apparently in the 1800’s witnessed a fight between two men. It was dark outside and the witness had a poor angle on the fight. (The defendant was being tried for biting a man’s ear off and the witness admitted that he did not see the defendant bite the man’s ear off.) Counsel on cross-examination successfully was able to show that the witness could not see the alleged assault and battery for which the defendant was being tried. Rather than sitting down after establishing this on cross-examination, counsel asked one question too many. “So if you didn’t see him bite it off, how do you know he bit the ear off?” The witness answered: “Because I saw him spit it out.”

Rule No. 3 of 12: The successful cross-examiner avoids the appearance of pettiness, nit-picking or unfairness to the witness.
Even though we practice in an adversarial system, there is no necessity to be adversarial with the cross-examination of each and every witness. Righteous indignation needs to be saved for appropriate occasions where the witness is clearly lying or needs to be exposed for some form of aggravated misconduct. Counsel must reserve outrage and indignation for the proper case.
If trial counsel is unfair to any witness or is otherwise petty, the jury may subliminally hold this against counsel and by definition counsel’s client. Thus, the third rule of successful cross-examination is to be fair but firm in the cross-examination of all witnesses and where appropriate, adversarial, provided the case justifies it.

Raptiva, a drug manufactured by Roche HoldingAG’s Genentech Inc. and marketed for the treatment of psoriasis has been linked to a rare but often fatal brain disorder. As a result of these findings, Genentech has issued a voluntary recall of the drug.

Genentech previously disclosed that three cases of the disorder, called progressive multifocal leukoencephalopathy, had turned up in patients taking Raptiva since October of last year. Two of these cases were fatal. A fourth patient died of unknown cause after developing neurologic symptoms. All had been taking the drug for more than three years.

Last month, Genentech updated the Raptiva label to reflect the increased risk associated with the drug. But the company said it ultimately determined that the risk of the disorder outweighs the benefits of the drug.

The Georgia injury lawyers at Finch McCranie, LLP have represented, and continue to represent, victims of day care child abuse. The statistics on physical child abuse are alarming. It is estimated that hundreds of thousands of children are physically abused each year by a parent or close relative; however, abusers include daycare workers, healthcare providers, mental healthcare workers and others who care for children on a daily basis.
We currently represent a young victim who was abused while a patient in the psychiatric ward of a Georgia hospital and a young victim of a sexual assault that occurred while a patient in an Atlanta brain injury rehabilitation facility. Just last week the Atlanta Journal-Constitution reported on a case where children were abused by a staff member at a Kennesaw day care center. According to the article, an investigation revealed that other employees of the day care center knew the abuse was happening! Although physical abuse is perhaps the most common form of abuse, it is not the only kind of child abuse. Many children are victims of neglect, or sexual abuse, or emotional abuse.
In 2005, 899,000 children in the U.S. were victims of child abuse, neglect and maltreatment: 90% suffered neglect, 3.6 suffered medical neglect, 13% were physically abused, 4% were sexually abused and 1% were psychologically mistreated. Children who have been abused may display:
a poor self image
sexual acting out
inability to trust or love others
aggressive, disruptive, and sometimes illegal behavior
anger and rage
self destructive or self abusive behavior, suicidal thoughts
passive or withdrawn behavior
fear of entering into new relationships or activities
anxiety and fears
school problems or failure
feelings of sadness or other symptoms of depression
flashbacks, nightmares
drug and alcohol abuse
Proper treatment through experienced professionals is the key to starting to heal the damage. Legal action is often the only way that those who allow the sexual abuse to occur will take responsibility for their failures.

Continue reading

Many Georgia residents may be driving General Motors cars which have a dangerous propensity to ignite in flames. General Motors and the National Highway Traffic Safety Administration announced yesterday that the possibility of engine fires has prompted General Motors to recall nearly 1.5 million passenger sedans manufactured between 1997 and 2003.
The recall covers certain mid- and full-size passenger sedans under GM’s Chevrolet, Buick, Oldsmobile and Pontiac brands.
The problem involves a potential for oil to leak on the exhaust manifold during hard braking. When a car operates under normal conditions, the manifold can get very hot. Oil that runs below the manifold’s heat shield can ignite and spread to plastic channels that hold spark plug wires.
The affected vehicles have naturally aspirated 3.8 liter V6 engines. These engines use atmospheric pressure rather than a mechanical blower to bring in air for combustion.
General Motors has proposed a change in the bracket that holds spark plug wires, which will be done free of charge, as a solution to the problem. Owners and dealers affected by the recall will be notified by letter next month with details.
The vehicles involved are:• 1997-2003 Buick Regals.• 1998-2003 Chevrolet Luminas, Monte Carlos and Impalas.• 1998-1999 Oldsmobile Intrigues.• 1997-2003 Pontiac Grand Prix.
If you are driving one of vehicles you should contact a GM dealer for a repair even if you do not receive a notice in the mail.

Continue reading