One of the best courtroom dramas ever made is Sidney Lumet’s The Verdict. Written by David Mamet, the script was adapted from a novel written by Barry Reed, a prominent medical malpractice lawyer in Boston, and offers an inside look at a realistic negligence trial. I highly recommend the movie, but – fair warning – I’m about to spoil the best scene.
The Underlying Case
The movie stars Paul Newman as a personal injury lawyer who ends up with a fairly straightforward medical malpractice case involving a woman who asphyxiated on her vomit while under a general anaesthetic and was left comatose. At issue was whether she should have been given the anaesthetic at all, which in turn depended on how recently she had eaten before it was administered. The plaintiffs’ position was that she had eaten only one hour previously, and that this had been communicated to the hospital. The defendant hospital and physicians took the position that she claimed to have eaten 9 hours earlier.
The problem with the plaintiffs’ case is that the plaintiff herself was left unable to testify and, more importantly, the medical record seemed to corroborate the defendants’ position. The case seemed dire until the plaintiffs called Kaitlin Costello Price, the admitting nurse. In chief, she testified that the patient had told her that she had eaten one hour previously, and that Price had recorded this in the record.
This led to one of the worst cross-examinations in the history of cinema.
The Cross-Examination of Kaitlin Price
The whole scene is worth watching in its entirety.
What Went Wrong?
This is the outstanding scene in a wonderful film – indeed, James Mason was nominated for an Academy Award for his role as the defence attorney Ed Concannon. And while one might quibble about some technicalities (for example, in this jurisdiction one would not be permitted to stand so close to a witness, especially during cross-examination), the film offers a very realistic depiction of a civil trial. The reason I say that this is the worst cross-examination in film is that Concannon makes a number of all-too common mistakes that result in his client losing the trial.
Many people can identify problems with his question at the end of the clip – “how it is that you remember so clearly after four years”? This raises several issues: first, it is an open-ended, rather than a leading question. This is generally to be avoided in cross-examination because it results in a loss of control of the witness. Second, and more significantly, it violates the usual advice against asking a question to which you do not know the answer.
While neither of these are hard rules, they should generally be followed unless the cross-examiner is certain they can deal with whatever response the witness might give. Obviously, Concannon was taken utterly by surprise by the nurse’s answer, a thing to be avoided at trial.
Taken by surprise and flustered, Concannon compounds the problem by asking an even worse question: “Why would you do that?” The nurse’s answer effectively ends his case.
The Real Problem with the Cross-Examination
Those are obvious problems, addressing questions we teach warn law students not to ask. I think the more fundamental problem with this cross-examination is that it was ill conceived from the start. In my view, the defence did not need to challenge this witness, and should have been leery of walking into a trap in cross-examination.
To see this, consider the following: first, the admission record that the case turns on was already in evidence, and recorded a “9” and not a “1”. Second, no witness had testified (and critically, the plaintiff did not suggest in cross-examination of any defence witness) that the record had been altered. Third, Nurse Price was the last witness at trial, meaning that her evidence would not be supplemented by some additional witness. Finally, and most importantly, her evidence in chief was exceptionally brief:
Q: You were the admitting nurse at St. Katherine Labrey, May 12, 1976, the night that they admitted Deborah Ann Kay.
A: Yes.
Q: Did you sign this admission form?
A: Yes.
Q: Those are your initials, KC?
A: Katelyn Costello. That’s my maiden name.
Q: Did you ask the patient, when did she last eat?
A: Yes.
Q: What did she say?
A: She had said she had had a full meal one (1) hour before coming to the hospital.
Q: One (1) hour?
A: Yes.
Q: And did you put the numeral one (1) on the admission slip, I mean standing for one (1) hour?
A: Yes, I did.
Q: A single hour?
A: Yes.
Q: Thank you. Your witness.
This evidence, which is obviously inconsistent with the exhibit, is exceptionally frail. One would have expected that Newman’s character would have attempted to supplement or bolster it – perhaps by having her testify that the “9” was not her handwriting. Concannon, who is presented in the film as a very experienced and sophisticated trial lawyer, should have expected that there was some explanation waiting for him to blunder into – perhaps an explanation that the plaintiff was prohibited from leading in chief by reason of the rules of evidence (in this case, a likely breach of the rule in Browne v Dunn).
Perhaps more importantly, without some explanation as to the discrepancy between her story and the written record, the jury was very unlikely to accept this evidence. Had Concannon simply asked the jury to reject her story as being inconsistent with the facts, pointing out that one would have expected her to explain the discrepancy if her evidence was true, they would likely have agreed. The decision to take this witness head on was unnecessary and, ultimately, disastrous.
The real lesson here is not “don’t ask a question unless you know the answer,” although that remains good advice. Rather, the take-away is that just because you can cross-examine a witness, you don’t have to – and sometimes, you shouldn’t.
