"I Have Never Seen A Lawsuit That I Couldn't Lose..." by John P. Branham
Mr. Branham’s article was published in the Nashville Bar Journal March 2010 edition.
Thinking back over four decades of trial work, I truly believe that there has never been a horse that couldn’t be rode, a cowboy that couldn’t be throwed, or a lawsuit that couldn’t be lost. More than 20 years of insurance defense work thoroughly conditioned me to losing cases that I expected to lose, where the only real issue was how much money the jury would award. On at least two occasions, I can recall putting on proof of my own client’s insurance coverage so that the jury would know that the truck driver we had fired for drinking and causing the accident would not be required to pay one penny of any punitive damage award. In both cases the judge and adversary lawyer were outraged, but the juries didn’t give punitive damages.
So anyway, I know how to lose. What gets me are the ones that you don’t expect to lose. The ones where you wake up in the middle of the night 20 years later and think, “How did that happen?” In most of those cases, I can often identify something that my client or a star witness said or did which led to the disastrous result. I usually feel it’s my fault for not anticipating and preparing for the event, although sometimes it was totally fortuitous. Most frequently the culprit is the client or witness who opines on something they know nothing about.
The hardest part of preparing witnesses for testimony, by deposition or in court, is convincing them that telling the truth means they may not know or remember certain facts or events. I try to hammer them with the proposition that they must tell the truth and if they don’t know the answer, that is the truth. Witnesses feel compelled to answer questions and are usually embarrassed to admit that they don’t know or remember the answers. The cable news “legal experts” love to pounce upon and belittle someone who takes the stand in a high-profile case and has the gall to say “I don’t know” to a critical question. (Boy, that gets ole Nancy Grace’s eyebrows a raisin’.) Often they derisively report the number of times a witness said they did not know or remember when those answers may have been totally responsive and persuasive to the trier of facts. (Alberto Gonzales and Scooter Libby to the contrary.)
The higher you go up the food chain, the harder it is to convince someone to admit they can’t answer a question. As a general rule, a forklift driver in the shipping department is fairly comfortable with saying he doesn’t know what the company’s policies are in other departments. Moving up the corporate ladder, it’s difficult to get the nabobs of the corporate world to admit that they don’t know all the intricacies of their company or industry. The example I use is where I represented a Middle Tennessee company that lost over $1 Million of its products stored in another state to a sticky-fingered customer. We claimed the products were stolen since they were taken in direct contravention of the agreement with the customer. The insurance company claimed the loss resulted from a bad business deal rather than by theft as defined in the policy. The responsible employees of our company all gave great depositions but the defense lawyer insisted on deposing the company president who knew nothing about the procedures and had achieved his lofty position by careful selection of his parents who founded the company. I thought I had prepared him fairly well until he was asked whether the company had any type of inventory control that daily monitored the flow of products in and out of the storage facility. He appropriately answered, “I don’t know”, thoughtfully paused, then added, “but we should have.” After the deposition I asked why he had added that comment (and why I shouldn’t kill him) and he said it just sounded like a good idea. From that day forward, through a week long trial and up to the Court of Appeals, there was a steady drumbeat from the insurance company that we didn’t have any daily controls and we knew we should. (I must add we did get a judgment in that case for the full amount).
The same reluctance to admit ignorance is exacerbated by the application of higher education. A high school dropout is a lot more comfortable admitting his lack of knowledge than a pompous Ph.D. I think this is one of the many reasons that lawyers, doctors, engineers, and the like, have a tendency to make poor witnesses. However, having represented quite a few lawyers, I am happy to report that there are some that understand the process and are not reluctant to acknowledge their limitations.
If I recall the litany correctly, there are things we know, things we don’t know, and things we don’t know we don’t know. Generally, it’s the middle category that causes witnesses trouble and the last one that makes trying lawsuits stressful.
Why do you think they call it a “trial”?
