It's not the trial of the century. I'm not even sure if it's the trial of the month. But the current Deer Valley whodunnit (aka Sanderson v. Paltrow) has had so many head scratching moments that it's worth a closer look. To be sure, watching a trial from the couch is like watching baseball from the couch: it looks easy. The further we are from the action, the better we think we would be. A 2-0 fastball down the middle? No problem (forgetting the fact that it’s 100 miles per hour). Trying a case on live tv? We’d be something between Atticus Finch and F. Lee Bailey—polite and charismatic with a sprinkling of zinger cross-exam questions that would hit bullseye every time. No, baseball is hard and so is trying cases (that’s why pundits are so humble whenever they analyze either).
But in this he-said-she-said ski collision case, where the jury must accept one party’s version of events and reject the other, the skill of the examiner is important. The lawyer has to elicit his or her client’s version of events in a clear and persuasive way (on direct-examination), and then undermine the credibility of the opponent’s version (on cross-examination). The Paltrow case is an easy case to examine because of its simplicity. The plaintiff, Terry Sanderson, alleges that Gwyneth Paltrow skied into him causing certain brain injuries. Ms. Paltrow alleges the opposite, that Mr. Sanderson skied into her.
Was Gwyneth Paltrow the perpetrator on that fateful Deer Valley day? The victim? Who knows, but if tasked with cross-examining an opposing party’s version of events, certain tools cannot be ignored.
Cross-Examining Gwyneth Paltrow: Make Her Credibility Is A Weakness?
Cross-examining Gwyneth Paltrow would be challenging because, unlike most percipient witnesses, she is obviously comfortable communicating to strangers and appearing in front of a camera. The key to effective advocacy, however, is the ability to turn seeming disadvantages into advantages (or at least address them head on). And when credibility is paramount and your adversary is inherently credible, it cannot be left unaddressed. A cross-exam to blunt the likeability of Ms. Paltrow could have been as follows:
Q Ms. Paltrow, good morning.
A Good morning.
Q Ms. Paltrow, you’re likely well-known to everyone in this courtroom. You’re a trained actor?
A Well, I did that much of my life, Today, I’m mostly a mom and entrepreneur. [When preparing for cross-exam, assume a lack of cooperation or direct answers.]
Q Fair enough, but you are a trained actor, yes?
Q In fact, your mother was an actor?
Q Your father was a director and producer?
Q You’ve appeared in how many movies?
A [Whatever the answer is.]
Q And, acting is, in essence, pretending, right?
A I’m not sure what you mean. [Again, presume non-cooperation.]
Q Sure, acting is pretending. It’s make-believe. For example , you’ve played characters in movies that have names different from yours, correct? [Make the question as tight and simple as possible.]
A Well, sure.
Q And you’ve developed the skill of reading and memorizing scripts and saying the lines in those scripts in a believable way, right?
A Well, yes, movies and shows have scripts and that’s my job when acting.
Q Right, and in fact, you are so good at acting and so good and communicating in a believable way that you’ve received an Oscar, isn’t that true?
A Yes, it’s true I received an Oscar.
Q You’ve played parts where you’ve laughed on screen?
Q You’ve played parts where you’ve cried on screen?
Q You would agree that you have spent years on mastering this craft of acting, true?
A It’s been a long time, yes.
And that’s that. The point is obvious to the jury. Ms. Paltrow is going to be a compelling witness, but beware: Ms. Paltrow is a professional actor.
Cross-Examining Mr. Sanderson: Logic and Common Sense
In a case like Paltrow, the objective when cross-examining the adverse party is clear: to debunk the opposition’s version of events. There are many ways to do this. You can point out the party’s motivation or bias. You can show that the person’s narrative has changed over time. But these tactics are most often insufficient to deal a fatal blow to an adversary. Points will be scored, but the narrative itself remains intact. Indeed, lawyers too often overestimate the strength of cross-examination by impeachment compared to cross-examination by logic (or common sense). Impeachment certainly has its place, but when it comes to the key issues (here, who skied into whom), the effective advocate will challenge the advers ary’s testimony head-on by focusing on the details that are most vulnerable to logical scrutiny. Two examples stood out in Mr. Sanderson’s direct examination.
First, Mr. Sanderson testified that he was skiing with a group that included a former ski instructor. According to Mr. Sanderson, he asked this former instructor to lead the group, and this was his testimony:
A … I asked Kirk if it would be okay if she led our group out because she’s very familiar with Deer Valley, and so she [sic.] said yes and gave us the rules of the road. Would you like to hear that?
Q So the meet up group. You guys kind of ski all togetherish [sic.]?
There are a couple things that are immediately noteworthy. It’s odd for a witness to ask the examining attorney if she would like to know something. The fact that he specifically asked his lawyer if she would like to know the rules of the road suggests that they had rehearsed this topic, and he was looking for an opportunity to testify about it. But notice that his attorney ignored the question. Examining attorneys are far too often tethered to their outline and looking to make sure they ask all their prepared questions. But too much attention to the outline often comes at the cost of ignoring something much more important: the witness’ actual testimony. Skilled advocates use their outline as a guide but (1) listen to each answer carefully, and (2) formulate their next question based on the last answer. Mr. Sanderson’s attorney eventually comes back to the topic as follows:
Q So you mentioned, “We set forth the rules of the road for that day.” What were the rules of the road that day?
A Well, the only rules of the road. We are pretty familiar with the rules of the road, so we don’t go over that at the time, but Debbie just said “We’re going to start down Bandana [the name of the run] ‘cause that’s how we’ll get to the blacks, the really good skiing, so our group knew that’s where we were headed. And she said, “Whatever you do on Bandana, do not go down the middle of the run.”
Q Why not?
A It’s packed and crowded with people, she said “go down the edges.”
This testimony jumps out for a couple reasons. First, as discussed above, it was clearly rehearsed. Between the two of them, they mention “rules of the road” five times without ever identifying whether anyone actually used the phrase. Second, and this is a little inside baseball, but “Rules of the Road” is the title of a popular book among plaintiffs’ lawyers that advocates a certain strategy when cross-examining defense witnesses. The strategy is basically a two-step process (that can be used by defense lawyers alike) that involves (1) getting the adverse witness to agree to a well-accepted truth (i.e., a “rule of the road”), and then (2) getting an admission that the witness broke the rule.
Mr. Sanderson’s testimony about the “rules of the road” was rehearsed, gimmicky, and vulnerable to cross-examination. Mr. Sanderson testified earlier that the group included experienced skiers that were heading to “the blacks” (i.e., the most difficult runs on the mountain) but they received specific instructions on how to navigate the beginner run where the collision happened to have occurred? Impeachment materials aren’t necessary—just common sense—could have been used to cross-examine Mr. Sanderson as follows:
Q You identified a person named Debbie, and that she explained the “rules of the road” to the group, do you recall that testimony?
Q Were those her specific words? Did she specifically use the phrase “rules of the road”?
Q Is that a common saying among skiers? [It’s not.]
Q And this Debbie, leading a group of skiers to the most difficult runs on the mountain, took a moment, used the words “rules of the road,” and instructed all of the group how to handle Bandana, a beginners’ run?
This line of questioning exposes how improbable his prior testimony was. Were he to say that he did not recall whether she specifically said “rules of the road,” the next question could be “You specifically came up with that phrase for purposes of this trial, isn’t that true.” Either way, the cross-examination could continue as follows:
Q In fact, this “rules of the road” comment. You brought it up because you’re trying to argue that Ms. Paltrow somehow broke the “rules of the road.”
A No, that’s not true. [Likely answer.]
Q You’re aware that “Rules of the Road” is a popular book among plaintiffs’ lawyers?
A No, I didn’t know that. [Likely answer.]
Q You’re not aware that “Rules of the Road” is a popular book among plaintiffs’ personal injury lawyers—like your counsel in this case—that is designed to help lawyers prove liability in cases like these?
An objection is likely made here, but it doesn’t matter. The point is made to the jury, and that’s that his “Rules of the Road” comment was made up for purposes of persuading them.
Later in his testimony, Mr. Sanderson described the collision itself:
A … I’m skiing easy and paying attention … there was nothing in front of me and so I came around that corner and, it takes my breath away because I don’t like going through this scene, I just remember everything was great and then I heard something I’ve never heard at a ski resort and that was a blood curdling scream and, I just, I can’t do it, it was just ahhh and then boom, and it was like somebody was out of control and gonna hit a tree and was gonna die and that’s what I had [sic., perhaps he meant heard] until I was hit.
Q That’s what was going on in your mind when you heard that scream?
A That was instantaneous. Oh my gosh, somebody’s out of control and they’re really seriously out of control, not time for a hockey stop, I didn’t think about that, most people could avoid that I think, good skiiers.
So there it is. Mr. Sanderson’s version of the event. It’s a hard-to-follow word salad and, again, vulnerable to a focused cross-examination. When a witness is unclear on facts (i.e., what happened, when, etc.) they are easy to trip up. A cross-examination could look as follows:
Q You testified earlier that you heard a “blood curdling scream” moments before the collision, do you recall that testimony?
Q Mr. Sanderson, how long did that blood curling scream last?
A Oh, I don’t know, it was just a couple seconds.
Q Well, you testified that it sounded loud and that it sounded like the person was out of control, do you recall that testimony?
Q You testified that while you heard this scream, you thought to yourself that the person was out of control, that the person might hit a tree, that this person might die, that this person does not have time to stop. Do you recall telling us about all these thoughts you had while you were listening to this scream? [This illustrates to the jury that this alleged scream must have been awhile if he’s thinking all of these things.]
A Yes, but as I indicated. It was all instantaneous.
Q Fair enough, but for you to determine that the person was out of control and not someone already on the ground, for example, I assume that the scream started from a distance and it continued to get louder as the person got closer, would you agree [or, is that what happened]?
Here, the witness may try to wiggle and say “Well, I don’t know. It was fast and loud, I’m not exactly sure where the sound was coming from.” If that’s the case, pin him down: “Okay, sitting here today, are you even sure whether the scream came from the person who collided with you, or was it some other distant scream?” This will bring the witness back, and he’ll likely stick to his version. And if that happens, follow up “So did the scream get increasingly louder as the person got closer?” He’ll have to concede that it did or concede he can’t recall. If it’s the latter, you can pin down further: “So you’re unsure whether it was a scream that got louder or a short scream that occurred right at impact?” If he concedes uncertainty, “In fact, the scream was not leading up to impact, but it happened at impact – when you collided with Ms. Paltrow?” The answer won’t matter, but the illustration is made: his story doesn’t work. If he says that the scream started at a distance and got louder, we’d continue as follows:
Q For how many seconds do you estimate that it got louder?
A Oh, I don’t recall exactly, two or three maybe. [Witnesses often hedge on these types of details, but once they’re said, adopt them in the questions moving forward.]
Q And in those two to three seconds, you were able to determine that the person was out of control?
A Yes, the person sounded out of control.
Q And in those two to three seconds, the person was able to, on the one hand scream because she’s out of control but not, on the other, do anything to stop, change direction, or anything before colliding with you, correct?
A Yes, that’s what happened.
Q Now, Mr. Sanderson, you filed this case several years ago, correct?
Q And in the years leading up to this trial, you’ve had occasion to learn about Ms. Paltrow’s competency as a skier, correct?
A Yes, I understand she’s an intermediate skier.
Q She was not a beginner on the day of the collision, you now understand that to be true?
Q And you’re not aware of her being some type of daredevil, are you?
A I’m not sure. [Again, assume the witness will not cooperate.]
Q Well, there is no fact that you are aware of to suggest that Ms. Paltrow is a daredevil or some type of risk taker when she’s skiing?
A I’m not aware.
Q And you understand that she was with a ski instructor and her children?
Q And this Bandana run, there was nothing unusual or difficult about the run?
A It was very crowded. And the crowd made it dangerous. [Again, assuming noncooperation.]
Q My question was about the run itself [show the jury that he did not answer the question directly], the Bandana run, there was nothing unusual or difficult about the run? [Try to re-ask the same question so the jury really understands that the witness was not answering the question.]
Q And the crowd [come back to his comment] did not make the run any steeper did it?
Q The crowd didn’t make the snow any faster did it?
Q It was an easy run with lots of people, right?
Q And according to you, Ms. Paltrow, an experienced non-risk-taking skier in her fifties was so out of control that she let out a blood curling scream lasting up to three seconds where you thought she was going to hit a tree and die, and then hit you from behind – that’s what you say happened?
A Yes. [To be sure, he’s reinforcing his claim that she hit him, but the answer does not matter. The jury is hearing his version, but it’s weighed against probabilities and logic.]
The trial is still going, with expert witnesses opining on everything from accident reconstruction to alleged brain injuries. One of the ultimate challenges for Mr. Sanderson is convincing a jury that (1) this accident was so significant that he has permanent brain impairment, but (2) his memory is perfectly intact when it comes to recounting the collision that caused his alleged brain impairment. My prediction: defense verdict.
David Sugden is a shareholder at Call & Jensen in Newport Beach, California.
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