Twists at trial.

Sometimes the unexpected happens during a trial: A witness changes her story, a defense demonstration shows more than it was supposed to, a client's truthfulness is suddenly called into question. How you deal with such moments can make or break your case. Here, four lawyers share their stories.

Sandbagged in Seattle

TODD W. GARDNER

"Connie, I think we've been sandbagged," I said to my paralegal as I sat down after receiving a completely unexpected, and shocking, answer from a key scene witness.

We were in the middle of a six-week road-design case against the city of Seattle. We represented Samia, a wonderful wife, mother, and talented computer technology professional who was unable to return to work after she was severely disabled in an auto accident.

One morning, Samia was turning left out of a Costco parking lot to go north onto a 35-mph, four-lane city street. Traffic was backed up in the southbound curb lane as cars waited to turn into the parking lot. As Samia slowly proceeded into her turn, the driver's side of her car was T-boned by a full-size van traveling south at 60 mph.

Both Costco and the city knew that vehicles often backed up in the southbound curb lane, making it extremely difficult for drivers turning left out of the parking lot to see fast-moving southbound traffic in the adjacent lane. In the previous seven years, about 100 similar collisions had occurred at the same spot as the high-speed impact that almost killed Samia.

Moreover, Costco and private citizens had repeatedly put city engineers on notice of the hazards drivers faced as they exited the parking lot. The city had analyzed and evaluated this dangerous condition on several occasions, yet had done nothing to correct the problem.

Although we were able to settle in mediation with Costco and the driver's carrier, the city was unwilling to offer Samia a reasonable amount on her claims. We prepared for trial.

In general, the testimony of the witnesses to Samia's accident was consistent at depositions: Samia crept out slowly from the lot and looked both ways. After she began to accelerate to turn left, witnesses said, they heard the sound of the van's fires lock up as it skidded into her car.

The key scene witness was Linda, who had a clear view of the collision as the driver of the first vehicle in the line waiting to turn into the Costco lot. While the other witnesses concluded that Samia had done everything she could to see around the backed-up vehicles and that it was the speed of the van combined with the hazardous turning situation that were primarily responsible for the accident, Linda's impression was different. She thought it was unfair that after the accident everyone was yelling at the driver of the van and at Costco employees, "when it was clear that it was the lady turning left who was at fault."

During Linda's deposition, we learned that when she was 19 years old, she had hit a dog that had run out in front of her car, and afterward, "everyone was yelling" at her. She always felt that she had been blamed unfairly. From my perspective, it appeared that in our case she had "bonded" with the driver of the van based on her own experience.

What to do with such a witness? We decided to prepare a computer-simulated reconstruction of the accident based on Linda's deposition testimony. We showed her the work in progress on three occasions and then made all the changes to the simulation that she suggested.

On the last visit, she told the videographer that he had "got it right" and signed the tape verifying that it was an accurate representation of what she saw on the day of the accident.

At trial, my goal was to get Linda to explain what we did with her to prepare the simulation and to testify that the tape was a fair representation of what she saw that day. Then I would simply play the tape.

It didn't work out quite that way. As I was loading the tape into the machine, I asked Linda, "Is this computer simulation a fair representation of what you saw at the time of the accident?" I was stunned when she responded, quite firmly, "No."

In what was obviously a rehearsed "cross-examination" with the city attorney, Linda claimed that she had signed the tape only because we had been "harassing" her and that the tape never really showed what she saw that day. She said that after she realized she had made a mistake about the tape, she called the city attorney, who kindly met with her before the trial. Interestingly, her verbal description of what happened was not dramatically different from what the simulation showed, but she told her story in a way that clearly suggested that she thought Samia was at fault.

I pointed out some of the inconsistencies between her court and deposition testimony and had her verify that she never contacted us after she had signed the tape to let us know that she had changed her mind. As a final blow, after the jury had gone on break, Linda walked to where Connie and I were sitting, looked down at us, and said, rather mockingly, "And that's what you get."

I was certain that our credibility was in tatters and that jurors would find that Linda's testimony supported the city's claim that the accident was Samia's fault. We decided our best course of action in a bad situation was to use the tape as impeachment evidence. The judge allowed us to show the tape with an instruction indicating that the jury could consider it in determining Linda's credibility.

Fortunately for Samia and her family, the city attorney's tactics backfired. The jury held the city responsible for more than half of her damages and found Samia to be faultless in the accident. The jury's verdict, returned on Friday the 13th, forever eliminated any fear I might have had of the number 13.

Still, whenever I think about that moment in court when a witness executed a plot hatched with the city attorney to sandbag me in front of the jury, my blood runs cold.

TODD W. GARDNER practices law with the firm Swanson Gardner in Renton, Washington.

Magical things

WILLIAM D. LEVINSON

In my 22 years as a trial lawyer, I have always found the trial itself to be the ultimate crucible of truth. Magical things can occur during trial that can turn your case around, but only if you perceive them when they are happening. That is exactly what my partner and I experienced in a medical negligence case where causation stubbornly eluded us until a demonstration by a defense witness at trial helped the jury see the probable cause of our client's injury.

Several years ago, a young man came to our office. John had recently undergone more than 20 chemotherapy treatments for acute lymphoblastic leukemia, which was in remission. However, in the week after his last treatment, John experienced a mild weakness in his legs. Soon he could no longer stand. Doctors diagnosed Guillain-Barre Syndrome (GBS) and treated John with steroids. This treatment failed, and by the following week, John was paralyzed below the waist.

What had caused John's injuries? We used reverse extrapolation to try to figure out what had happened, working backward from the paralysis to the myriad of potential causes.

Our first question was whether John suffered from GBS at all. Typically, GBS causes an ascending paralysis. John's paralysis did not ascend; rather, it descended from his lower back to his legs. Further, most GBS patients recover most of the use of their torso and legs; John recovered nothing. Accordingly, we believed that GBS was an unlikely cause of John's paralysis.

Our next step was to examine the nearest event to John s paralysis--his last chemotherapy treatment. John had received two drugs that day: vincristine, which was administered intravenously, and methotrexate, which he received intrathecally (in the spine). By all accounts, his last treatment had been uneventful and no different from his previous treatments.

We discovered a medical article that described a condition known as idiosyncratic methotrexate toxicity. The authors noted that every once in a while a patient develops paralysis below the injection site, even when the drug has been administered properly. But after analyzing every article we could find on idiosyncratic methotrexate toxicity, we concluded that it could not have been cause of John's paralysis.

The other chemotherapy agent John received, vincristine, is toxic to the nervous system and therefore is never injected into the spinal column. Consequently, we did not imagine that vincristine could have played any role in John's paralysis.

Next, we looked at John's pharmacy records relating to the mixing and administration of his chemotherapy drugs. We discovered that the hospital pharmacist who had prepared them was a probationary junior pharmacist. Now things started to get interesting.

We got our first clue to the actual cause of John's paralysis during the pharmacist's deposition. She said she had mixed John's two chemotherapy agents separately but under the same pharmacy hood--a violation of good hospital practices because of the possibility of cross-contamination. But from the pharmacist's description of her actions, it appeared that it would have been impossible for even a trace of the vincristine to find its way into John's spine.

We knew we could discredit the pharmacist at trial for breaching protocol by mixing the two agents under the hood at the same time, but we could not prove that she actually contaminated the methotrexate with vincristine. We still lacked the essential causal connection that would allow a skeptical jury to conclude that it was more likely than not that cross-contamination had injured John.

Our good fortune came when the defense--over our objection, ironically-had the pharmacist perform a demonstration of the mixing process at a table in front of the jury, following every step of the protocol that she said she performed on the day when she prepared John's chemotherapy drugs.

Defense counsel didn't notice--but we did, and so did the jury--that the pharmacist used only one disposal bag to get rid of the needles she used to mix or extract the two drugs. This was critical, because if she had prepared the first agent and sealed the disposal bag, it would have been impossible for one drug to contaminate the other. But if she had prepared the vincristine first and had not disposed of the needle but rather used it again to draw the methotrexate, we had a probable scenario for cross-contamination.

Although the pharmacist carefully showed how she threw away each of the needles, in post-verdict discussions the jury told us that they could see that she was both nervous and overprepared for the demonstration. That, and the absence of a separate disposal bag for the second needle, led the jury to conclude that the methotrexate probably had been contaminated and that this was the cause of John's paralysis.

John's case was one of the most troublesome cases in my career. He had been referred to us by a close family friend, and his injuries were catastrophic. We debated long and hard whether to take his case, but once we did, we never stopped searching for the cause of his injuries. And because of one magical moment at trial, we were able to secure a verdict for him.

WILLIAM D. LEVINSON is a partner at Eichen Levinson & Crutchlow in Edison, New Jersey.

What's in a name?

JOHN L. MESSINA

Annabelle S. Smith was an ideal client: articulate, credible, and grandmotherly. All in all, she was a woman with great jury appeal.

Annabelle came to see me and my law partners after she was injured in a motor vehicle collision in Tacoma, Washington. Her spinal injuries were serious, and liability was not contested. The only mystery in the case was the reluctance of defense counsel to participate in serious settlement discussions. We had no choice but to file a lawsuit.

During discovery, defense counsel concentrated on damages and Annabelle's medical history. He questioned her treating physicians in great detail, asking them if she had ever complained of spinal injury or pain. We began to wonder if defense counsel knew something we did not.

We again asked Annabelle about her medical history and whether she had ever fallen or been in another vehicle collision. Was there something she might have forgotten in her distant past that could have been related to a spinal injury? Annabelle steadfastly denied having any such problems.

We were well prepared for trial and liked the jury we got. We started our case with our most supportive medical witness, the primary treating doctor, who spoke about Annabelle's injuries, how those injuries had affected her, how they would affect her in the future, and how Annabelle was an ideal patient who worked hard to get better. After that, other witnesses, including physical therapists, friends, and relatives, at tested to Annabelle's struggles and courage after the collision.

By the time we called Annabelle, the jury had a clear picture of her as a nice, middle-aged lady who had suffered at the hands of a negligent defendant and who deserved compensation for her injuries, which were no fault of her own. After our brief direct examination, Annabelle was ready for cross.

Defense counsel first tried a collateral attack, focusing on the moderate damage to Annabelle's car and noting that middle-aged people tend to have a few aches and pains. It was ineffective, and Annabelle simply agreed politely with his inane leading questions.

Then defense counsel slowly and dramatically walked to his briefcase and pulled out a document. Moving closer to Annabelle, he asked:

"Now, are you sure you've never been in another car accident?"

"Yes, never, not even a fender bender."

"Well, what about four years ago, on Vashon Island [an island located near Tacoma]?"

"I've only been on Vashon Island a few times and certainly did not get involved in any accident there."

"Well, who was the Annabelle S. Smith who did get into that accident and complained of terrible neck and back injuries as a result?"

"I have no idea, but it wasn't me."

At this point, we objected. The court denied our request to see defense counsel's document until he finished his cross-examination.

When the court broke for lunch, we were frantic. Had our nice client been a fraud? Had she held back? Did defense counsel have an accident report we did not have? We knew that Smith was a common name and that the name Annabelle Smith wasn't too unusual, but how many Annabelle S. Smiths could there be? We had to get to the bottom of this.

The phone book had 16 listings for "A. Smith." We asked our investigator to call them all while we took Annabelle to lunch. She maintained her story, and we believed her.

It was a time before cell phones, so we could not stay in touch with the investigator, and the trial resumed before he got back. Defense counsel droned on, trying to make a few points. As he finished, our investigator walked in and whispered, "I got her." We asked for a short recess, and the judge reluctantly granted it.

I got the story. On the investigator's third call, he reached the daughter of another Annabelle S. Smith, who said that her mother was at a bingo hall The investigator found this Annabelle Smith, and she was happy to come to court for us. And so, another nice, middle-aged lady took the stand.

I asked her: "Please state your name, with your middle initial."

"Annabelle S. Smith."

"Have you ever been involved in an auto accident?"

"Yes, a few times."

"When was the last time?"

"Four years ago on Vashon Island."

"What, if any, injuries did you receive in that accident?"

"I hurt my neck and back."

I never saw the document defense counsel had held when cross-examining my client. He put it away. When asked if he wished to cross-examine our new witness, he said, with red face and ears, "No, your honor."

The jury liked our client and did not like defense counsel's ploy. It showed in the verdict.

JOHN L. MESSINA is a partner with Messina Bulzomi & Christensen in Tacoma, Washington.

A case of divine intervention

LARRY S. STEWART

Sometimes the trial gods smile on a deserving plaintiff. It happened to three-year-old David Maldonado.

I represented David and his parents, who were poor immigrant farm workers in the small central Florida farm community of Labelle. Because there were no child care facilities for farm workers in Labelle, parents often took their children to the fields when they went to work. There were dangerous conditions for the children in the fields, especially when there was heavy equipment around, as was the case in picking operations.

The grove owners were well aware that their workers often had no choice but to bring their kids to work with them. The owners knew the dangers, but they turned a blind eye to them.

On the day of David's accident, the Maldonados were assigned to pick oranges in a grove owned by the largest employer and biggest farm operation in the area. The Maldonados took David along with them and placed him in a large plastic tub. Somehow, David managed to crawl out of the tub and was run over by a large tractor. His spinal cord was severely damaged.

Labelle was a defendant-friendly venue, and even though David had a strong case, the trial court quickly found an excuse to turn us away on summary judgment. Once that judgment was reversed on appeal, we faced the daunting task of seating jurors from among the area's conservative population who harbored no prejudices against immigrants--like the Maldonados---who could speak no English.

I knew that using an interpreter would lessen the emotional impact of the Maldonados' testimony, but they were key eyewitnesses to the accident and the jury needed to identify with them. I came up with what I thought was a brilliant idea. I hired the most vivacious interpreter I could find. If my clients' personalities were going to get lost in translation, I would at least have a "witness" with an engaging presence as my interpreter.

Initially, the trial went well. I caught the defendant's employees in some serious fabrications, we had a strong case on liability, and it seemed that the jury was warming to our side. Then I put Mr. Maldonado on the stand, accompanied by my handpicked interpreter.

At first, my plan seemed to work. The jury immediately took to the interpreter with smiles and nods.

What I failed to realize was that I had hired a Spanish interpreter, not a Mexican interpreter, and that she did not know the slang vocabulary of the farm workers. When we reached an important liability question, the defense objected that my interpreter had mistranslated the answer. Within the next half-dozen questions, she made a number of other mistakes, the defense continued to object, the jurors' smiles vanished, and my interpreter fell apart.

As I hurried through Mr. Maldonado's testimony, I tried to think of some way to save the case. Nothing came to mind but the image of my young injured client.

David had been fitted with a double leg brace, which enabled him to walk by swinging one leg forward and then the other. In desperation, I asked the Maldonados (through my now devastated interpreter) to show the jury how David could walk with his brace.

The mother and father gently picked up their child and carried him across the courtroom to a spot where they could lay him down and attach the brace. They carefully spread a ratty old blanket they had brought with them on the floor. Slowly, they laid David down and began to attach the brace.

The only sound in the courtroom was the parents' whispered words to their son. Even though no one knew what they said, everyone understood. Out of the corner of my eye I saw that the judge had stood up and was leaning over the bench so he could see what was happening. I was afraid to move a muscle.

After what seemed like an eternity, the brace was attached. The Maldonados slowly lifted David and gave him his crutches. I stood at the end of the jury box and asked David to walk over to me. With halting, jerking steps, swinging his crutches and legs, David began his journey.

Halfway across the courtroom, he looked up and beamed a huge smile that lit the entire room. The first sound was the court reporter as she burst into tears. She was followed quickly by several of the jurors.

The judge called for a recess but the trial was essentially over, and the Maldonados received a substantial verdict to compensate them for the grove owner's negligence and to help them care for David in the future.

Afterward, the trial judge called me aside and said, "See? We take care of our own." I didn't bother to tell him what had really happened: The trial gods had made sure that local prejudice would not prevail over justice.

LARRY S. STEWART is a partner in the firm Stewart Tilghman Fox & Bianchi in Miami.

ILLUSTRATIONS BY GREGORY NEMEC