simple “When was the last time you spoke to your husband?” would have done quite nicely.
The case had turned from the negligence of a social host serving alcohol to a guest-a tricky case for a plaintiff because jurors expect people to take care of themselves-to something far different.
Gross negligence.
Willful and wanton misconduct.
Reckless disregard of human life.
Punitive damages.
Yeah, let old Jake handle the case. He can’t fuck it up. And if he does, the insurance company will cover his ass. Not anymore, Nicky.
I stood up for cross-examination of Melinda Tupton and strode confidently toward the witness stand. Never let them see your fear. I buttoned my navy-blue suitcoat, proving I could walk and accomplish other rudimentary tasks simultaneously. My shirt was white, a tad too tight at the collar, which is what happens when you have an eighteen-and-a-half-inch neck. My tie was burgundy and didn’t have any gravy stains, as far as I could tell. My face was tanned but felt overheated and flushed.
What to ask?
There was the stuff about Florio’s threatened STAPP suit. I could get her to admit that her husband’s main tactic was doing the same thing, threatening suit. These days, it’s sometimes a race to the courthouse to see who files first, the developer or the bird-watchers. But that was a double-edged sword. Tupton’s threats could provide the motive for killing him-or letting him die-even without the mysterious document in the den.
The document.
Whatever it was, Nicky either didn’t know or wouldn’t tell me. I could ignore it, of course, and try to show the jury it didn’t bother me. I could also hope that the tooth fairy would deposit silver dollars under my pillow. On the other hand, by getting into the phone call and the document, I might open the door to redirect examination that could go even further than the so-called excited utterances on whose petard I was now hoisted.
I opted for the low-key approach and hoped I would know what to do when the time came. My questions were so soft, the jury had to lean forward to hear them. You don’t come out of the box swinging wildly at a widow lady. Not unless you want the jury to lynch you and bankrupt your client.
I asked about her education and her job as a public school teacher, gently implying that she was self- supporting and didn’t need a fortune to sustain her. I asked her age, thirty-four, not to be impolite, but to let the jury know that there was still time for her to meet, to marry, and to procreate. I asked-because I knew the answers-whether she had been treated by a psychiatrist for depression after her husband’s death, whether she had missed an excessive amount of work, and whether she needed sleeping pills or other medication.
No, no, and no.
Slowly, I asked one boring question after another, trying to build an impression that might chip away at the mental-anguish claim, the ominous intangible that lights up the scoreboard in wrongful-death cases. The conclusion I wanted the jury to reach was simple: This is a young, strong, intelligent, vital woman who will survive, and in time, prosper. So don’t break the bank at Monte Carlo to help her out.
I established that her husband had been a workaholic who spent little time fixing things around the house, or repairing the cars, so as to reduce the lost-services claim. I purposely did not ask if she had started dating or planned to remarry because it angers jurors, and the answer wouldn’t have helped my case. I made no gestures and accepted every answer kindly and tried to let the jury know that I am a decent-enough fellow who does not strangle kittens or malign widows.
I paused and walked back to the defense table. Nicky Florio looked up at me expectantly. His eyes seemed to be pleading for more. He couldn’t believe I was finished.
Neither could I.
I put all my notes on the table, turned, and moved closer to the witness stand. “On direct examination,” I began, “you testified about a phone call from your husband on August ninth.”
She nodded, prompting the judge to remind her to keep the answers audible for the court reporter.
“During this phone call,” I said, “your husband seemed excited, did he not?”
Melinda Tupton sat with her legs crossed, her hands folded in her lap. “Yes.”
“Was his voice louder than usual?”
“Yes, somewhat.”
“Was he speaking rapidly?”
“Yes.”
“Some of his words slurred?”
“Not slurred, exactly. But he wasn’t as articulate as usual. It’s hard to explain.”
“Did he say he’d been drinking?”
A pause. She was thinking about it. “Yes. He either told me outright, or I asked him, I don’t remember which. Either way, he said he’d been drinking champagne mixed with orange juice.”
“And the reason you think you may have asked him is that he didn’t sound quite like himself?”
“That’s right.”
“Mr. Tupton was not a heavy drinker, was he?”
“No, I already said that when Mr. Patterson asked.”
I smiled my tolerant smile. “I understand, Mrs. Tupton, but this is cross-examination, and your answer may lead us to something else, so please bear with me. The few times you saw your husband drink, he became tipsy, didn’t he?”
Bluffing her.
She couldn’t know if I knew…
Holding my breath now.
The book says you don’t ask a question on cross-examination unless you know the answer. But instinct told me I was right and that Melinda Tupton was honest. The book also says that you try to frame the question to get admissions. You’re allowed to lead the witness. The perfect cross-examination does not elicit a series of long- winded explanations. The answers should be a string of yes’s and no’s, depending how you phrase the questions.
“I’m not sure what you mean,” Melinda Tupton said.
Not knowing where I was going, but figuring the truth would hurt her case. Still, not wanting to lie.
Fake a risk, now. Chide her, let the jury see her reluctance to answer, but be careful not to offend. “Come now, Mrs. Tupton, you know the meaning of the word ‘tipsy.’”
“Objection, argumentative!” H.T. Patterson was not going to imitate a potted plant.
“I’ll rephrase,” I offered before the judge could rule against me. “Could your husband hold his liquor?”
This time the answer came quickly. “No.”
Heaven praise an honest woman.
“So it took only a couple of drinks to make him inebriated?”
“Yes.”
“People respond differently to alcohol, don’t they, Mrs. Tupton?”
“Objection!” Patterson was on his feet again. “Calls for an opinion. Outside the witness’s expertise. No predicate. And irrelevant.”
“Anything else?” Judge Boulton asked.
“It’s a silly question,” Patterson said.
“Overruled. It’s a matter of common observation.”
“I suppose they do,” the witness said.
“Some people get loud and obnoxious. You’ve seen that, haven’t you?”
“Yes.” Her voice barely a whisper.
“Some people get sleepy and quiet.”
“Yes.” Softer still.
“And your husband would become excited and hyper, would speak rapidly, wouldn’t sound quite like himself.”
“Yes.”
Though her voice was faint, I heard the answer, and so did the jurors. But I wanted them to hear it again, so
