Cold Testimony

For many years, during the time that I was in general practice, I tried a variety of cases not only for myself but also for other lawyers. In this particular case, a very prominent lawyer, Eugene Spada, with whom I had worked on various cases called me and said, “I’m called for trial in Fonda, NY and I have conflict. Can you try my case?”

I discussed it with him on the phone. He gave me an outline. It seemed a rather straightforward two-vehicle accident. I agreed and Gene arranged for me to get his file.

Mind you, I had done nothing to prepare for this case. He had sued the case and had done the depositions. Now it was on the court calendar for trial. I knew few of the details. But I nevertheless found myself agreeing to go up to Fonda and stand in for him.

When I got there, I stood before a man who was a model of a judge, Supreme Court William Crangle, Jr. He looked like he had just stepped out of the Silver Screen of Hollywood. He was a handsome man with silver hair, sitting behind his bench was his long black robes. He ran the courtroom in a civil and a modest way, but still firm. He was every bit a gentlemanly judge. Interestingly, he had a reputation as a great outdoorsman. Eventually, when he retired, he climbed all 46 peaks over 4,000 feet in the Adirondacks and would live to be 102!

The judge called the calendar, and one after another, the local lawyers either said, “Not ready,” or had some other excuse. By the time he got to the foot of the calendar, I decided I would go ahead if the judge was ready to preside on my case. As the calendar was called, I had the sense that no one, including the judge, was in a big hurry to move cases.

When he got to me, he seemed surprised that I called out, “Ready!” Nevertheless, he said, “Mr. Rosenblum, we have a jury pool of 50 people ready for selection.”

During jury selection, one thing you do is prepare the jury with the questions you ask them. You want to prepare them to think about your case and your position in your case. But I couldn’t do that! Questioning the jury usually gives you a chance to insert some facts of your case, in the form of questions, and watch how the jurors react.

To say the least, I faked it a little. I asked members of the jury pool for their names, and what they did for a living, anything else that would be revealing about the kind of person I might be selecting for the jury. As for the facts of my case, all I could do is ask them to keep an open mind about a two-vehicle unwitnessed collision on a snow-covered country road.

I picked my 12 jurors and two alternates (in case someone gets sick or is otherwise unable to attend). After that, it was up to the defense to question the same people. After both sides have had a chance, they tell the judge who they choose. In those days, the judge would give 4 strikes—meaning the opposing counsel could nix a juror—without a reason. Beyond that, you would need to give a reason, such as a juror was related to one of the parties, or knew about the accident and already had an opinion, or was unable to sit for the case for enough days.

That took the better part of the day.

After that was over, I told the judge in chambers that I was still in the process of familiarizing myself with the case. I asked if we could try the case the day after tomorrow, and the judge agreed. The defense lawyer also agreed. As I said, no one seemed to be in a big hurry.

The defense attorney was a local guy named Dick Horigan. He had what some might call a disability. Sometimes his voice would fail him and get raspy. He would have to pause for a moment and then continue. Despite this, Dick was an articulate guy and was known as the premier defense attorney in that neck of the woods. Based on his reputation and the way he handled himself in the courtroom I knew I had my hands full.

I called Eugene later that night and told him I would go over the file as much as I could, but if there were any gaps in the files, I would need to do some investigation.

After reading the file, I realized that there was one major witness we hadn’t spoken to: the state trooper who investigated the case.

During the one-day delay that I was able to get, I asked my investigator, Don Packard, to come to Fonda and look for the trooper. The trooper was on duty and moving about. Sadly, Don was unable to catch up with him.

Now it’s the evening before the trial and I have no idea how this trooper is going to testify, what his disposition is on the case, or how he would handle himself as a witness.

In the police report for the accident, the trooper described the accident like this:

The accident occurred on a narrow, two-lane dirt road, off the main state highway, that went up to various farmhouses. Two trucks had collided up the road. Fields were covered with snow on both sides. The snow was blowing fiercely in both fields. He could barely see up the road. In his report, he called it a “whiteout.” He attributed the accident to the so-called whiteout. In addition, the snowplows had piled up the snow to the point that it was higher than an ordinary vehicle, and may have narrowed further an already very narrow road.

A milk tanker had been collecting milk from the various farms along that road. It was coming down the dirt road to the paved road, only partially full. My client, who was a farmer in a pickup truck, had turned onto the dirt road to get up to his farm. The two trucks collided. The question was whose fault was it? Or, was this accident simply caused by bad weather and bad driving conditions?

My inability to question that trooper before starting the trial was likely to be deadly to the case. If the trooper testified what was in his accident report it was unlikely the jury would find in my client’s favor. I walked down the main street of Fonda, stopped into a couple of businesses, and found out the trooper lived out in what some would call the woods. He lived in a house trailer. It was dark now, and this was unfamiliar territory. With a bit of luck, however, I was able to find his digs.

I approached along the path that he had shoveled up to his house trailer, trying to make enough noise so that he knew someone was coming. The trooper was a big, lumbering guy, perhaps about 45 years old. A small pot belly overhung his belt. He greeted me at the door…. with a barking German Shepard at each side.

I introduced myself, told him who I was, where I was from, and why I was there. He invited me in. As it turned out, he didn’t remember much about the accident until I showed him his own accident report. Then I told him who the defense lawyer, and he began to swear.

“He defended a case where I had arrested someone for drunk driving and he made a fool out of me. I’ll never forgive him for that!”

We had a little more conversation about the accident. He began to soften in his description of the accident.

“How long after the accident occurred did you arrive?” I asked.

He said, “I wasn’t there until maybe half an hour after it occurred.”

“You mentioned in your report that the snow was blowing. Was that continuous?”

“Oh no! There were many times when there was no snow blowing at all. At those times, there would have been plenty of visibility.”

If I could bring that kind of testimony out, and keep out of evidence his report it would give me an edge at trial.

The next day, my client testified. He made a rough and ready kind of appearance. At my request, he had shown up at trial in his farm clothes. I wanted the jury to have in mind an individual who had to work very hard to scratch out a living as a dairy farmer. He was about 50 years old, a bit on the stocky side, weather-beaten with hands that were rough and calloused.

He testified in a hesitant, simple but clear manner. He sounded matter-of-fact as he described what happened. “The tanker was coming down. I saw that the road was narrow, with high piles of snow on both sides. I pulled over to let the tanker go by. Then, to my surprise,” he said, “the tanker didn’t pass me. He hit the brakes and his tank truck slid into mine and pushed me into a snowbank. Oh my gosh, the pain… the pain… later learned my hip had been smashed.”

That was all I needed to prove the liability of the milk tanker. I went on to get more proof of his injuries. They were serious: because he had fractured his hip from the accident he was out of work at his farm for several months. He had to get neighbors and family to help milk and feed the cows. The way he was casted it was difficult to get around.

The injury left him with a permanent limp which made it difficult to run the farm even after the cast came off. Several times, he nearly lost the farm because he didn’t have enough income from his dairy herd. That left the jury with something to think about in terms of the consequences of the injury. Then I rested.

The first witness the defense called was the truck driver. He was a tall, rangy guy who spoke very confidently, quite sure of himself. He testified that he had been driving milk tankers for many years and had never had an accident. According to him, my client did not stop and was actually taking up more than his share of the road. He laid the blame squarely on my client’s shoulders.

When I cross-examined him, I had in mind to bring up only one factor: whether or not the tanker was full or only partially filled. I got the truck driver to admit that the tanker wasn’t completely full, which put it at risk of what is called the slop factor. With a half-filled liquid load, when you hit the brakes too hard, the milk keeps moving inside the truck. It slops forward and pushes up against the inside of the tank and tends to push forward on the front of the truck. This shoves the truck forward even though the driver is braking. I was able to get the driver to explain all that and in effect was turning his testimony in my direction.

The next and final witness for the defense was the state trooper. The attorney began to question the trooper. It was clear he wanted the trooper to read the report to the jury. That would clearly have been very damaging.

I interrupted him and objected.

I said, “Your Honor, there is no evidence that the trooper’s recollection needs to be refreshed by referring to the accident report. I would ask the court to require my learned adversary to just ask questions of his witness and see just how much he remembers, before using an old report.”

I was worried that if the trooper read from the report, it could have sealed in the jury’s mind that there was such a blizzard-like whiteout. If that had happened, no other admission would have made a difference. So by objecting to having anyone read from the report, it forced the defense attorney to just question the trooper.

Naturally, the trooper began to narrate differently from the report. He described that sometimes there was a lot of blowing snow, but sometimes it was absolutely clear. During my cross-examination, he elaborated on that. It soon became clear that the weather had not caused the accident. If the jury believed my client and believed the tanker driver had indeed hit his brakes and slammed into my client’s truck, we would win. Keeping out the trooper’s damaging report was the key to victory.

After Horigan finished with the trooper, I cross-examined him and got him to elaborate on just how clear the weather on the road was much of the time. When I finished the defense attorney picked up the report, looked at the judge, looked at the jury, slammed the report down, and shouted, “That trooper is his witness!”

There had been no offer to settle from the tanker’s insurance company up to that point. All efforts at settlement had been futile. We went back to the judge’s chambers and chatted. Then the judge asked the defense attorney if the insurance company would like to settle the case. He responded, “Yes, your honor, I think that might be fruitful.”

Horigan went out to a payphone (no cell phones in those days) and made a call. Twenty minutes later, he came in scowling. “Your honor,” he said, “I have been authorized to put the entire policy on the table. We are willing to pay every dime we have in coverage.”

The judge put it on record, discharged the jury, and that was the end of the case.