In his book, Litigation, Professor James McElhaney laments the fact that civil litigators are horrified at the prospect of a blind cross-examination. As a result, he argues, “[e]very year we spend millions of dollars on needless depositions of ‘witnesses’ who have little to say and nothing to add about the cases in which they would never be called to testify anyway.” But we depose them, he suggests, because we’re scared to death of asking a question to which we don’t know the answer.
In Litigation, he provides some suggestions to civil litigators who, despite their best efforts, find themselves in a blind cross-examination situation. One of these, which he terms “Duck facts,” I particularly like.
Duck facts refer to things for which you don’t need proof. “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.” The classic example of this is where the witness tries to testify to something that makes no sense at all. McElhaney’s example is pretty good:
“Q. You say Schultze didn’t throw the bowling ball at Malone?
A. No way. He just dropped it. It was an accident.
Q. So Schultze just dropped the bowling ball?
A. That’s right.
Q. And then it just rolled onto Malone’s foot?
A. That’s right.
For those of us who continue the practice of deposing every conceivable witness, practicing duck facts questions, and looking for duck fact opportunities will surely sharpen our skills. I keep waiting for that case where the client forbids me from conducting any pretrial depositions and forces me to go to trial “cold.” I’ll get to practice my blind cross skills in real-time.