Look Before You Submit That Trial Exhibit

Look Before You Submit That Trial Exhibit.

So, I am in the middle of a 4 ½ month jury trial in Orange County. It was a complex case involving legal malpractice in the handling of a 27 home complex construction defect case.  The claims involved breach of contract, breach of fiduciary duty, legal malpractice and others.  I represented a local plaintiff’s lawyer in the defense of the claim. There were 27 expert witnesses. Enough said!  After surviving 110 motions in limine and making the case through the Christmas holidays, the dozens of issues in the case were now being dealt with, almost daily. Thank goodness that Judge Gregory Lewis is a patient man, as I don’t know what would have happened if our judge was particularly impatient.

Anyhow, about 2/3 of the way through the trial, a relatively small, innocuous issue took center stage. The other side was contending that, in one of the 27 luxury homes, a 150-pound chandelier fell to the marble floor from a cathedral ceiling. Again, this was an extremely minor issue and a clear reminder to all us that we should only litigate the necessary issues in trial. So, I demanded that the chandelier be brought to court. It was not all bent up but was a solid brass chandelier where the glass allegedly had broken out. It did not seem to me that such a solid, heavy chandelier could have stayed relatively intact from such a high fall. So, during cross-examination, I casually inquired as to how much it cost to repair the broken marble tile. The answer was “the tile wasn’t cracked”, it was merely “scratched”. Really? Hmmm.

This too seemed odd to me, so the next day I performed an impromptu demonstration in court. Now, I am not commenting on whether or not this was proper. It probably was not. I imagine many attorneys and judges will cringe when they hear about it. Anyhow, I got away with it. That evening, I went home and “professionally” mounted 4 marble tiles to a hard backed board. I painstakingly grouted in between each of the tiles and prepared my exemplar of the floor. I proudly brought in my work of art to court the next day to resume my cross-examination. I then had the witness continue to elaborate as to how this chandelier fell to the ground and damaged his tile. I again inquired: “how it could have fallen without breaking or smashing the marble tile?” The witness was adamant that it happened and it did not break the tile. So, out of my back pocket came my ball peen hammer. I lightly tapped one of the tiles and, voila, the tile easily shattered.

Apparently concerned that some damage had been done to their credibility, the other side then created their own demonstration. That night, they took photos of the chandelier, the scratched tile and the “foot print” of the chandelier. They brought their series of photos to court the next day. They wanted to show exactly where the five little feet on the bottom of the chandelier had hit and “scratched” the marble tile. With a grin on their face, the other side felt they had significantly countered by demonstration. Take that Mr. Brown!

So, we fast forward (actually slow forward) to closing argument. We are preparing our power point presentation and the section on how utterly ridiculous their description was of this incident. During the process, we put together a series of power point presentations (with their photos and ours) to show that it couldn’t have happened the way the other side contended.

Oh, did I tell you that with their photos they also put a copy of the Los Angeles Times to prove that the photos were taken just the day before? So as we were blowing up their photos and creating our description, my trusted associate pointed out one of the articles. It was an article on the testimony of Roger Clemons in his perjury trial – somewhat ironic.

But, the article was not as significant as the headline quote, which was prophetic. It read, “Somebody is lying in spectacular fashion. “ Apparently, the other side did not read any of the articles before they used the paper to establish their date stamp. The jurors loved it!