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Witnesses: Putting the test in testimony | Marcel Strigberger

Friday, April 16, 2021 @ 2:38 PM | By Marcel Strigberger

Marcel Strigberger %>
Marcel Strigberger
It was a cold Canadian winter morning. But let me get back to that in a moment.

The success of your case often gets down to three things: witnesses, witnesses and witnesses. 

The concept of witnesses goes back over 3,000 years, where “Thou shalt not bear false witness,” makes its debut in the Ten Commandments. Witnesses must have been important then. Where would our profession be without them now? (Actually given COVID-19 and court closures, that’s exactly where we are, without them now).

Now back to that cold Canadian winter morning. I was about to enter a restaurant when suddenly I slipped and fell on a large patch of ice right at the entrance. As I lay there in agony, a gentleman helped me up, saying, “Careful, the walkway is a skating rink. “That sage comment was an understatement. I would say actually this was the closest I ever came to participating in the Ice Follies.  

He alerted the restaurant, and a lady came out and dumped a bucket of salt on the de facto outdoor arena. I asked for the man’s contact information. He handed me his business card, noting that he was a financial adviser. This is the first time I actually accepted a business card from yet another financial adviser. And it was a good thing I did. The insurance company eventually interviewed him and as the adjuster put it to me, “There is some corroboration here. We should be able to settle this case.”

But not all of us are lawyers, appreciating the importance of witnesses. I had a client once who tripped over a protruding piece of lumber at a national chain hardware store. Apparently two customers who witnessed the event offered their contacts but the manager who came by said it wasn’t necessary and told them to leave. I wonder whether the store presents a course for staff on risk management and when they get to unfavourable witnesses, the manual reads, “Shoo them away.”

Being a witness can be stressful, even for lawyers. A client once sued a prominent litigation lawyer on a home renovation contract. The lawyer made the mistake of representing himself. In the middle of my client’s testimony, the lawyer jumped up and shouted, “That’s not true.”

The judge turned to him and said, “Now now Mr. Williams, you know the drill. You’ll get your opportunity to try to get to the truth.”

Then again some witnesses not being familiar with the process, are not stressed at all. They do not even realize who is who in the courtroom.

An elderly client of mine at a trial testified in a very low voice. The judge had trouble hearing him, especially as he was facing the opposing lawyer during cross-examination.

The judge interrupted, saying, “Mr. Moscovitch, can you please look at me and speak a bit louder. I can’t hear you.”

The witness replied, “It’s OK. I’m not talking to you. I’m talking to him.”

Moscovitch wasn’t stressed, (unlike Williams). Fortunately, the judge heard enough to grant us judgment.

Expert witnesses can be intimidating. One of my first trials involved a small two-seater hovercraft which mysteriously sank on its maiden voyage in a lake at a summer camp. My client and a teen camper were aboard. Fortunately, they were not hurt. After retrieving it from the lake, they noticed a small fist size hole in the hovercraft’s hull. The client claimed that some rocks at the bottom of the lake must have caused the hole. Without photographing the damage, he hastily returned it to the vendor. The vendor photographed the hull noting a large gaping aperture somewhat resembling the Arc de Triomphe. He insisted my client crashed the hovercraft into some rocks. Surprise?

At trial, the vendor presented an impressive expert witness involved in designing the hovercraft. This expert was both a marine architect and an aeronautical engineer. We were talking a one-man NASA. He was a daunting, distinguished looking gentleman, resembling Sir Anthony Hopkins. I knew I was in trouble as he was sporting a navy blue blazer bearing a crest of a colourful hot air balloon, hovering over a mini submarine.

I was mortified. Back then there was no obligation for a party to give the opposition a witness “will say.” The fly and float guru testified using scientific references, such as the Archimedes principle on buoyancy. He was adamant that absent trauma, this hovercraft was unsinkable. 

My cross-examination was brief as the only science I remembered was some high school physics, like, the specific gravity of water was one. I did not think it would help my case much to ask whether Archimedes ever experimented with a hovercraft. I recall thinking that David had a better shot of beating Goliath. At least he was armed with a slingshot.   

The judge surprisingly returned a verdict for the plaintiff. He was especially impressed by the testimony of that teen camper witness who said when looking at the vendor’s photograph, opening his hands widely, “There was a hole there, but it wasn’t that big!” 

I learned a useful lesson regarding litigation, namely, not to be afraid of any witness, including some hot-shot expert sporting a navy blue blazer bearing a crest with the likes of a mini submarine hovering over a hot air balloon.

Let’s hope we can soon bring on these witnesses again, in person.

And oh yes, I did favourably settle my slip and fall matter.              

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit Follow him @MarcelsHumour.

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