Cool under fire.

When I was a young associate, a partner in the firm appeared in my office with a federal court case set for trial in two weeks. The plaintiff had been injured when a wooden ladder he was ascending at a job site broke. His injuries included numerous lumbar fractures that required several corrective surgeries.

In reviewing the file, I learned the ladder had been discarded and, thus, was no longer available for inspection. Eyewitnesses agreed that it had failed because the wood was rotten. After reading the depositions in the case and the discovery obtained from the ladder manufacturer, the only viable trial theory I could discern from the pleadings was that the ladder had not been treated with a wood preservative to prevent its degradation. Unfortunately, the evidence obtained in discovery did not reveal whether the ladder had been treated with a wood preservative.

I met with my expert, a mechanical engineer, who frequently testified on behalf of plaintiffs. We discussed how to present his trial testimony in light of the fact we had no proof that the ladder had not been treated with a wood preservative. We decided he would testify that either the ladder was defective because it had not been properly treated with a preservative or that it lacked an appropriate warning advising users to periodically apply a wood preservative. We crafted a direct examination that allowed the expert to render his opinions without emphasizing the fact that we did not know whether the ladder had in fact been treated with a preservative.

In direct examination at trial, I covered the expert's work and educational background. Among other things, he was a longtime professor of mechanical engineering at a local university. I explored the design process, including how engineers employ hazard analysis to identify product risks. The expert explained it is an engineer's responsibility to eliminate, guard, or warn against foreseeable risks and hazards.

The expert did not have experience working in the ladder industry. After establishing what I presumed was sufficient foundation for his opinions, I asked, "In your opinion, Doctor, was the ladder unreasonably dangerous and defective at the time of sale?"

"Lack of foundation," objected defense counsel.

"Sustained," ruled the court.

I froze for several minutes, not knowing what was wrong, before I asked additional foundation questions. Then, I repeated the defect question.

"Lack of foundation," objected defense counsel.

"Sustained," again ruled the court.

I thought I had established a sufficient expert foundation. I could not understand why the objections were being sustained. I repeated foundation questions at 5- to 10-minute intervals before I attempted again to elicit the expert's defect opinions. Over the next 40 minutes, the court repeatedly sustained the defense's foundation objections.

The courtroom was full of lawyers. All eyes were on me. All knew my obvious mistake, yet I didn't know what I was doing wrong. Finally, after questioning the expert at length about the ladder-design learned treatises he had reviewed, the court overruled the defense attorney's objection to my question about the ladder being dangerous and defective and allowed the expert to answer.

Defect established

I established that the ladder was defective and that the defect had caused the plaintiff's injuries. Because of my difficulty eliciting the proof that the ladder was defective, my fear of further objections outweighed my desire to have the expert address negligence. I sat down.

Given the expert's direct examination and the fact that I could not prove whether the ladder was treated with a wood preservative, I feared the court would direct a verdict against the plaintiff when we rested our case. After argument at the conclusion of the plaintiff's case, the court, without any comment, denied the motion for a directed verdict. At that point, I had achieved a victory--the case would now go to the jury.

After the close of the evidence, at the jury instruction conference, defense counsel argued that the negligence question should not be submitted to the jury because I had not asked negligence questions. The judge denied the request, ruling that the trial testimony presented factual issues for the jury. The judge then attacked my expert.

The judge said that when he had been a defense attorney, he had encountered my expert on a number of occasions. He believed that the expert was a plaintiff's advocate who would opine to defect or negligence without regard to scientific principles or engineering practices. For that reason, he dismissed the expert's testimony and, in his discretion, prolonged the qualification process.

Thus, I realized my mistake was not a lack of understanding of the rules of evidence or courtroom practices. Rather it was a failure to anticipate the judge's bias.

Know the judge

From that experience, I learned that an attorney must learn all he or she can about the judge before trial. Review prior published decisions. Discuss the judge with other plaintiff attorneys experienced in the judge's courtroom.

Thoroughly review the judge's legal career, especially that time before he or she became a judge. If the judge was previously a defense attorney, contact plaintiff attorneys with prior litigation experience against him or her.

The experience also taught me to remain cool under fire. It is not always the form or substance of questions that determines a court's ruling on objection. Above all, I learned to persevere until necessary testimony is elicited.

John C. Cabaniss practices in Milwaukee, Wisconsin.