Having an elderly witness break into tears during cross-examination has the potential to infuriate juries, or humanize otherwise unsympathetic witnesses, and, according to several trial lawyers, attorneys handling those witnesses should use caution.
During the Salvation Army building collapse trial last week, the 91-year-old building owner whose property toppled onto the Center City Salvation Army facility, leaving seven dead and 12 injured, broke down and cried on the stand, saying he was “brokenhearted” about the deaths and that he couldn’t proceed with the questioning.
Whether or not the teary outburst shifted sympathies won’t be known until the jury returns its verdict but, according to trial attorneys, those who might be at risk for an outburst should be handled very delicately.
Plaintiffs attorney Slade McLaughlin of McLaughlin & Lauricella said that’s why he begins his questioning as peacefully as possible when dealing with opposing witnesses who are elderly, young children, or mentally or physically disabled in any way.
“There are some people who are really nasty, and you have to address them in a really terse fashion,” McLaughlin said.
“I always start out my questing in as non-confrontational a way as possible. If it drops off that scale, it’s because of the witness.”
McLaughlin said he has handled several cases involving some very delicate witnesses, including one medical malpractice case where a woman fainted on the stand and was eventually given mouth-to-mouth resuscitation by a defendant in the case. In another case, a witness who was in his mid-80s at the time appeared to suffer a heart attack during McLaughlin’s cross-examination. That suit, Skirpan v. Caterpillar, ended in a $16.25 million settlement in 2009.
“I don’t think he was ever sympathetic to the jury. He was a sort of cantankerous old man who didn’t like anyone questioning him,” McLaughlin said. “He gave a really poor impression to the jury. A couple of jurors were shaking their heads like, ‘Just answer the questions.’ I see the jury reacting favorably towards me probing and pushing. I’m saying things like, ‘Sir, Can you answer my questions, please.’ I stepped it up a little bit because the guy was giving me nothing.”
Using the witness’ demeanor as a guide post when questioning a potentially delicate witness was a tactic most trial attorneys said they used.
“You have to take your cues from the witness,” Pittsburgh attorney John Gismondi said. “Even if you don’t like what the witness is saying, you don’t get aggressive with an older witness unless they are the first ones to adopt an aggressive tone.”
Eliciting focused and detailed responses can be particularly difficult with elderly witnesses, Gismondi noted. He added that the witnesses can often become frustrated and angry when pushed.
“It’s kind of like being confronted with their own shortcomings from being advanced in age,” Gismondi said. “Again, you need to be respectful. You need to understand their limitations, and you do not adopt an aggressive tone unless they adopt one first.”
As for their lack of detail, Gismodi said that can always be mentioned during closing arguments.
Kenneth M. Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck said coming across as disrespectful or as a bully intent on making the witness look stupid can easily turn the jury against an attorney. But, he added, if the defendant ever breaks into tears, it is important to quickly pivot to a more sensitive posture.
“You’re contrite and you apologize to the witness, and say, ‘I don’t mean to upset you.’ But say, ‘These are things the jury needs to know'” Rothweiler said. “You act like a human being. and be sensitive to their feelings.”
How an attorney should approach a witness is highly dependent on each individual witness and case, but one factor that can play into the consideration, according to attorneys, is geography.
“In urban areas you can be a little more aggressive because, in urban areas, I think, people are used to it,” Rothweiler said. “In the counties it’s a little more genteel”.
McLaughlin said he has noticed a particular difference with witnesses from the northeastern part of the state. Noting that it is almost the opposite problem as that of a delicate witness, he said sometimes the witnesses are extremely emotionally reserved.
He mentioned a case where his client, the mother of a 21-year old who was in a terminal coma, did not appear to be greatly affected while talking about her daughter on the stand.
“It makes my job as an advocate more difficult. If a mother is talking about her daughter that she’s close with, and she never sheds a tear. That makes. it hard for me. How do you tug at the hearts of these jurors when the ·mother doesn’t visibly show she’s upset?” he said.
McLaughlin said his way of handling the situation was telling the jury the mother was emotionally numb from the situation.
Source: The Legal Intelligencer
By Max Mitchell – October 27 – 2016