Can I Get A Witness (who isn’t Rick Lax)?
In Trial Advocacy class, I hit home runs on the witness stand every week.
The reason I’m able to do this is that as a witnesses, I am allowed—even encouraged—to make up facts on the spot, as long as they are consistent with the witness/character I am portraying.
Last week, I played Plaintiff James Gable in a car collision case.
The fact pattern said the accident occurred at 2:20 PM and that Gable “had a meeting with a potential client scheduled for 2:00 PM.” In a deposition, Gable claimed that he had been driving the speed limit before the accident occurred, so at trial, the defense attorney’s job was to get Gable (me) to admit that I had been speeding to get to my meeting.
Here’s how it went down:
“Mr. Gable, how fast were you going when the accident occurred?”
“I never went faster than twenty-five miles per hour.”
“Were you in a rush before the accident occurred?”
“No.”
“Isn’t it true that you had a business meeting scheduled for two-o-clock?”
“Yes.”
“So you had a potential client waiting in your office for twenty minutes?”
“No.”
“But you just said you were running twenty minutes late for your two-o-clock meeting.”
“I didn’t say that; I said the meeting was scheduled for two. See, at one-o-clock, my potential client called and said he was running an hour late. So I had plenty of time to return to my office. I was in no rush at all.”
The defense attorney tried to impeach me by omission, arguing that I hadn’t mentioned my potential clients’ tardiness during my deposition, so I mustered up the most innocent look I could and I said, “You never asked.”
Then the defense attorney tried to impeach me with a statement I had made to the cops:
“Didn’t you tell Officer Johnston you were going thirty miles per hour?”
“I don’t remember that conversation.”
Under the Federal Rules of Evidence, the defense attorney couldn’t admit Officer Johnston’s police report into evidence because I didn’t write it. In a real trial, the defense attorney would have called Johnston to the stand, but in class, that wasn’t an option.
If you were the defense attorney, how would you have dealt with me/Gable?
Technorati Tags: Witness, Trial, Trial Advocacy Class, Federal Rules of Evidence
Posted in Classroom Observations | 
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March 30th, 2007 at 8:30 am
Machine gun death, “A Time to Kill” style.
March 31st, 2007 at 12:06 pm
Remember, I’m a tax attorney. If you had been accused of cheating on your taxes instead of speeding, I would have known how to handle the situation
March 31st, 2007 at 12:10 pm
Let me get this right - you told the police that you had a 2 o’clock meeting which was now at 3? Why did you bother telling him it was at 2 then?
March 31st, 2007 at 1:00 pm
Counselor Linda,
‘I’ didn’t say that the meeting was at 2. Gable, the person I was playing on the stand, said that it was at 2 and he said it in a deposition before the trial happened. So that was part of the fact pattern I had to work with…
-Rick Lax
March 31st, 2007 at 2:35 pm
can we bring gable’s client up onto the stand and ask if the meeting was really pushed back to three? also, i have traffic cam photographs that prove gable was going 30 or more miles per hour.
March 31st, 2007 at 3:31 pm
Counselor Hank,
You could bring Gable’s client up on the stand if Gable was lying. But I promise you, Gable was no liar; he was just very fortunate.
Now, how can the traffic cam photos you claim to have show speed? Are they actually traffic cam videos? I didn’t know they made those. If not, then do you have an expert who can look at the blurryness of the moving car in a traffic cam pic and deterine speed based on that?
-Rick Lax
March 31st, 2007 at 7:48 pm
a competent cross examiner would be able to spontaneously loop the witnesses shennigans on the stand and make him look like a fool.
Give me an answer other than ‘yes’ and you will be punished.
That’s cross for you. Plain and simple
April 1st, 2007 at 9:55 am
This reminds me of a time when I caused an accident but the other guy got in trouble. I smashed the bajeezus out of a Grand-Am with my F-150 at Lahser and Square Lake. Unfortunately for the other driver, my mother insisted that I call the police after any car accident. When they arrived, I admitted that I had not noticed the other driver’s car and had turned at just the right time to destroy the entire driver’s side of his vehicle. As I began to pull away, however, I noticed the police begin to give the other driver a sobriety test. When I asked what had happened to him at the police station a few days later, the clerk wouldn’t tell me. I can only assume the poor gentleman whose car I ruined spent that night in the brink.
In short Laxy, were I the defense attorney, I would have claimed you were drunk and that you were driving erratically.
April 2nd, 2007 at 10:58 am
Rick, is there “correct” answer, or are you merely setting parameters for an open-ended intellectual exerecise?
April 2nd, 2007 at 11:47 am
I probably would have attacked your comment about the speed you were driving. In response to your ‘I never went faster than twenty-five miles per hour.’ statement, I would clarify that that wasn’t the question I asked and then asked again how fast you were going. If you don’t nail down a speed, then I challenge your comment about not going over 25 MPH, and if you do nail down a speed, I challenge your ability to remember the specific detail of exactly how fast you were going but your inability to remember any part of a conversation with a law enforcement officer.
Of course, I’ve only just been admitted to law school, so I could be missing something obvious to any 1L…
Rob
April 2nd, 2007 at 12:22 pm
Counselor RobWreck,
If you are missing something obvious, I don’t know what it is.
And Counselor Silhouette, this is an open-ended question indeed.
-Rick Lax