McELHANEY ON LITIGATION
On Good Behavior
A witness who speaks simply and
directly looks pretty good to a jury
BY JIM McELHANEY
“ANGUS, I’VE BEEN THINKING ABOUT
this idea of yours that character
plays a role in how judges decide
cases,” said Nick Wheeler. “Which
is why I’ve asked you to help out
this afternoon.”
Wheeler had reason to be concerned. His client, Pencraft Builders, had been stunned by a $17 million verdict against it in an age discrimination case.
Fortunately, Nick’s firm, Randolph and Wheeler, got
a new trial—not because they convinced Judge Mudrock that the verdict was excessive, but because Mudrock discovered that he had made a mistake in his jury
instructions.
“Pencraft Builders is one of the largest developers
of upscale subdivisions in the country,” Wheeler said.
“And their CEO, Donald Pencraft, has a commanding
air about him. I’m convinced he’s the one who can put
on the right face—show the winning character—when
we retry this case.
“But the problem was convincing Mr. Pencraft to put
enough time into it,” said Wheeler. “Then one of our
young associates found an interesting article in the Wall
Street Journal about the Microsoft case. The article described how, whenever things got a little boring at trial,
the government lawyers would show another clip of Bill
Gates saying something outrageous in his video deposition and the whole courtroom would get stirred up
again. When I showed Mr. Pencraft that article, he decided that maybe this time he should do some serious
trial preparation.”
GETTING DOWN TO SERIOUS WORK
WE WORKED FOR HOURS. NICK WHEELER AND HIS PART-
ner, Patrick Reilly, who tried the case the first time,
took turns doing Donald Pencraft’s direct examination.
Angus critiqued while I took notes and operated the
video camera. The idea was to let Pencraft see for himself how he came across.
The results were dismal. Pencraft obviously was putting effort into the exercise, but he looked like he was
trying to impress everyone with how important he was.
Despite all of Angus’ suggestions, Pencraft was stiff,
guarded and arrogant. He resented the intrusion the
case was making on his time. He said it was “all the
plaintiff’s fault for filing this outrageous lawsuit in the
first place.”
McELHANEY AT HIS BEST
The ABA Journal is occasionally reprinting some of Jim
McElhaney’s most popular columns from past years. This article
originally appeared in the Journal’s April 2001 issue under the
headline “Looking for the Good Guy.”
Then Angus took Pencraft on cross-exam, and it was
my turn to critique.
It started out as classic Angus. He used short, simple
leading questions to paint a picture of Pencraft as a
ruthless executive who didn’t care about the people
who worked for him or what happened to them when
he found out how much money he could save by firing
the older employees and hiring younger ones.
But in less than 10 minutes the cross came to a halt.
After one particularly telling question, Pencraft stood
up and started screaming at Angus. Then, as quickly as
he started, he stopped and sat down again. “I won’t do
that in the trial,” he said. “It’s just that I feel strongly
about this case.”
“Right you are,” said Nick with a chuckle that sounded forced. “Better here than in Judge Mudrock’s court.”
“Start over again,” Pencraft told Angus. “I’m perfectly capable of total self-control.”
This time, I decided to interrupt whenever Pencraft
gave a bad answer—which turned out to be most of
the time.
Right at the start, Angus asked a simple yes or no
question, and Pencraft gave an evasive answer.
“Stop,” I said. “Don, listen to the question.”
“I did,” he said.
“Then answer the question,” I said.
“I did,” he said.
“No, you didn’t,” I said. “Watch the monitor.” I replayed the question and Pencraft’s answer. “You dodged
the question because you didn’t like it, and instead you
answered some other question that wasn’t asked.”
“I’m just being a good lawyer,” Pencraft said.
I smiled. “No, you’re not,” I said. “You’re being a
bad witness. You’re supposed to answer the questions,
not argue the case. Whenever you’re evasive or argumentative, you lose credibility, and the judge and jury
won’t trust anything you say.”
Pencraft took it to heart and answered Angus’ ques-
tions for four or five minutes. Then he started up again.
This time Angus called a halt. “Wait,” he said. “The
answer to that last question was obviously yes, and everyone on the jury will know it. But you didn’t say yes.
You’re the witness and you actually objected to a perfectly proper question. You do that in trial and Judge
Mudrock will cut you some new body parts.
“You may have a plausible defense in this case,” said
Angus, “but playing those kinds of games can cost you
the trial. Let your lawyers do the objecting. You just answer the questions.”
