Cross-Examining the Plaintiff’s Corroboration Damage Witnesses: Sometimes Less Is More.

WDC Journal Edition: Winter 2014
By: Russell M. Ware, SmithAmundsen, LLC

Introduction

Experienced personal injury lawyers know that corroboration witnesses on damage issues can be very important to a plaintiff’s case. They know that if the plaintiff is on the stand too long describing each aspect of his or her injury, jurors may unfairly perceive a plaintiff as a complainer or may simply lose focus and miss important parts of the plaintiff’s testimony. (Obviously, the jurors’ level of patience and interest will vary depending on the severity of the injuries sustained.) They also know that jurors often can gain insight into a plaintiff’s injuries— sometimes their most important insight—from the testimony of family members, friends, or co- workers called as corroboration witnesses to present observations and perceptions as to a plaintiff’s pain or disability or lifestyle changes. This testimony is sometimes quite short, but often very effective.

What should defense counsel do when offered the chance to cross-examine corroboration damage witnesses? Here are reasons why sometimes when it comes to cross-examining such witnesses “less is more.”

1. Highlighting Witness Bias Is Largely Unnecessary.

It is usually not necessary to remind jurors during cross-examination that such a corroboration witness is likely biased. When assessing the testimony of a plaintiff’s friends or family members or co-workers, jurors immediately understand that this witness is not disinterested, but instead is partial to the plaintiff’s case. A question on cross-examination like, “In fact, as the sister of the plaintiff, you want her to win as much money as possible in this lawsuit, don’t you?,” accomplishes little for the defense. Indeed, such an approach to a witness who appears to be well-meaning will likely cause jurors to regard the defense lawyer as inappropriately confrontational and disrespectful.

Even more basically, the reality is that most corroboration witnesses are in fact honest and well- meaning. Yes, they want in varying degrees to help the plaintiff, and their recollections and testimony will therefore likely be colored by that fact, but out-and-out dishonesty by corroboration witnesses which must be exposed during cross examination is by far the exception and not the rule. In fact, even in those rare case where the plaintiff is truly malingering, and the corroboration witness called by the plaintiff is in on the scheme, dealing with the corroboration witness during cross examination will not be the defense’s most important task at trial; if the defense successfully exposes the plaintiff as dishonest (through surveillance evidence, for example), the credibility of the corroboration witness will necessarily collapse along with that of the plaintiff.

2. Cross-Examination May Do More Harm Than Good.

Unless there are specific concessions or important points of clarification which must be elicited from a corroboration witness, conducting no cross- examination at all may be the best approach. This is because an unfocused cross-examination which in effect gives the witness an opportunity to repeat for the jury the testimony corroborative of the plaintiff’s claims—perhaps in a more effective way than the witness was able to do during direct examination—will be counter-productive. In many cases, a better approach to cross-examination may just be: “Mr. Jones, I found your testimony informative and interesting. I have no questions for you. Thank you for coming in today.”

3. Closing Argument May Be The Best Place to Deal With Corroboration Witnesses.

There is no legal requirement or even best-practices rule which obligates the defense to comment during closing argument on each and every corroboration witness called by the plaintiff. However, if defense counsel chooses to discuss the corroboration witnesses, a good approach is usually to try to harmonize that testimony (if possible) with the defense theme on damage issues. For example, if the defense’s theme on damage issues is that the plaintiff’s present symptoms are really the result of pre-accident causes, the impact of a witness corroborating plaintiff’s present disability can be minimized by reminding the jury during closing that the corroboration witness, though well-meaning, never claimed to have first-hand knowledge of the plaintiff’s pre-accident medical situation. Likewise, if the defense’s primary damage theme is that the plaintiff has made a very good recovery, counsel can suggest during closing argument that a corroboration witness’s perceptions of the plaintiff’s limitations, although given honestly, are properly trumped by medical records and by testimony from the knowledgeable medical experts confirming a higher level of recovery. Regardless of the specific facts of the case, such an approach during closing argument gives the jury a proper reason to largely discount the testimony of corroboration witnesses who nevertheless seemed well-intentioned and likeable. In other words, jurors can be assured during closing argument that the corroboration witnesses, although subjectively truthful, just don’t know “the whole story.”

Conclusion

Corroboration damage witnesses can be an important part of the plaintiff’s case. Such witnesses must be handled in a careful and thoughtful way by defense counsel so that jurors can receive an accurate picture of the plaintiff’s claim.

Russell M. Ware is a shareholder with SmithAmundsen, LLC in Milwaukee, Wisconsin. He has been a trial lawyer for 40 years, concentrating on the defense of lawyers’ professional liability claims and personal injury matters. He now devotes the major portion of his practice to service as a mediator and arbitrator in civil cases. His articles on mediation and negotiation strategy have appeared in national and statewide publications. He has authored more than thirty articles on dispute resolution, professional liability, and trial practice. He is a former President of Wisconsin Defense Counsel (Civil Trial Counsel of Wisconsin) and is a member of the American Board of Trial Advocates (ABOTA). He can be reached at (414) 847-6154 or rware@salawus.com.