Can a Cross-Examination Result in an $11 Million Settlement?

Trial Advocacy Lessons from The Defenders

Matt Murdock scores a major victory in court with a crushing cross-examination of a witness that forced the defendants to settle for $11 million dollars in The Defenders episode “The H Word.” While that is very possible, it is not probable. Let’s explore why.

Murdock has expanded his practice from criminal defense to pro bono plaintiff’s product defect litigation. Many solo attorneys like Matt Murdock do both criminal and civil litigation, but normally a lawyer would focus on one practice area over the other.

The testifying defendant was addressed an expert witness, because Matt Murdock asked the witness in “his professional opinion” about a motor that was used in a new station. However, this witness was also the party, who was being question on business practices and not offering an expert opinion.

Matt Murdock questioned whether the Defendants were aware that the product used in their station was hazardous to children. The witness further testified that the product was attractive because it was strong, durable, and half the price of other products. When questioned on product safety, the Defendant answered that the subject motors were replaced after a safety report. Murdock impeached the witness with a record of delivery of another safety report that was sent three months earlier.

The trial procedure in this scene is somewhat muddled. First, the defense attorney would not object that their client was being asked to testify with unreasonable specificity. The proper objections would be lack of personal knowledge, assumes facts not in evidence, and the best evidence rule, since the witness was being questioned on a document that was not yet a trial exhibit. When the record was offered as an exhibit, it is a surprise that the Defendants apparently did not know about the trial exhibit, with Murdock asking the final question on what was worse, ignoring safety data or failing to provide the records to the court. Murdock then made the mistake of not letting the defendant answer the question. It would be extremely harmful to the Defendants if they admitted not producing records in discovery (which raises the issue how did the Plaintiffs get the documents and how were they admissible).

There are no surprises in lawsuits with documents not seen until trial. The records of delivery would have had been produced in discovery and included on the Plaintiff’s Trial Exhibit list. Moreover, even if the document had been discovered after the start of trial, the opposing side would have learned of it before cross-examination of the Defendant. This would not be a “gotcha moments” for the Defendants, other than how the trial exhibits were going to be used. If defense counsel could not recognize in pre-trial discovery that their client had constructive notice, perhaps actual notice, of the serious health risk of the motor to children, that would be malpractice. That case should have never seen the inside of a courtroom.

This extremely damning exchange would not have happened in a trial with a party, but in a deposition. The records of delivery had to be either produced from the Defendant, or from third-party discovery, specifically the company that sent the safety report, or the delivery service. Either way, the defendants would have been aware of the harmful documents that showed knowledge of health risks to children.

It is entirely possible defense counsel knew of the documents showing their client knew of the dangerous product, and yet advised them to go to trial anyway. Perhaps they believed the potential for damages in the millions was worth the risk of a trial. However, this strategy backfired in front of a jury. Settling for $11 million dollars must have been cheaper than risking a larger jury award and a protracted appeals process to either strike the award or lower it. Either way, the Defendants should prepare for multidistrict litigation in Federal court for similar cases.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.