Vail Law: An old story about the value of knowing when to stop talking (column)
July 10, 2018
An apocryphal story told in law schools goes like this:
The case is about a man injured in a bar fight. He is suing the guy who, in the thick of battle, bit off his nose. The plaintiff's lawyer has established that: a) there was a bar fight, b) his client — let's call him Mr. Nares — was injured, c) Nares' injuries were both unusual and severe; d) his client suffered considerable embarrassment and pain; and e) at considerable expense, Nares had to have his schnozz reattached. The defendant, it seems clear, is implicated as the perp.
So far so good.
Witnesses have been called. Evidence has been presented. Horrible, awful, bloody photos of Nares' injuries have been presented to the jury. The responding paramedics have recounted how they found Nares' nose disconnected from his face at the bottom of a punch bowl. One even opined, wide-eyed, that he would have thought a nose would float. The otolaryngologic and plastic surgeons have explained in gruesome detail what it takes to reattach a severed nose back on a face and have it come out looking right.
“The jury has heard the witness admit that he didn’t actually see the budding gastronome nip off Nares’ proboscis. But he couldn’t resist. Instead of the blessed
— and damning
— sound of silence ringing in the jurors’ ears, he went on. Like Narcissus in love with his reflection, the attorney was in love with the sound of his own voice.”
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Nares' wife has espoused upon the unbearable levels of her husband's pain. As a nice little detail she adds that Nares, who has always loved her cooking, can no longer smell nor taste his favorite foods. Without her garlic lasagna, life is hardly worth living. The chief of human resources from Nares' workplace has accounted for the hours Nares lost and what that has meant to his income.
"What a pity," she concludes.
What about Chu?
All that's left to do is to skewer one Mr. Chu who, the plaintiff claims, is the perpetuator of Nares' myriad misfortunes.
Several witnesses are called to take the stand. One after another, they attest that Nares and Chu were mixing it up. A couple helpfully offer that Chu was the aggressor.
The plaintiff's attorney — Nares' attorney — is in full swagger. After examining the witnesses, it is Chu's attorney's chance to cross-examine the witnesses. At first, he does a workmanlike job. There are details here and there he nips at. He plants a seed or two of doubt in the minds of the jurors. Some, he can tell, are beginning to doubt at least some of the story. Maybe, they seem to be thinking, Nares was the aggressor. Maybe, just maybe, he had it coming to him.
Flushed with his growing sense that he's got this, the defense attorney sidles up to podium and makes a show of tidying up his notes. After a dramatic pause, he looks up causally, then says to the witness squirming in the witness stand, "So you were there that night, isn't that true?"
"And you saw the fight? Correct?"
"That's right, I …"
"And … isn't it true," Chu's attorney says, "that you told my esteemed colleague, Mr. Nares' attorney, that Chu bit off Nares' nose?"
"Indeed. That's what I said."
Here, Chu's attorney walks around in a tight little circle and ends up where he started at the podium. More to himself than to the witness he says, "Is that right?"
"But what you didn't say," the lawyer says, now stealing a glance at the good people of the jury, "is that you didn't actually see the claimed event, isn't that right?"
"Well, I …"
"You didn't actually see Mr. Chu bite of Nares' nose, now did you?"
There is a pause and then a "No, sir. I did not."
No stopping the barrister
Here is where the strutting attorney should have left it. The jury has heard the witness admit that he didn't actually see the budding gastronome nip off Nares' proboscis. But he couldn't resist. Instead of the blessed — and damning — sound of silence ringing in the jurors' ears, he went on. Like Narcissus in love with his reflection, the attorney was in love with the sound of his own voice.
He cleared his throat and said, "Sir. You mean to tell these honorable jurors — these good men and women — that you did not actually see my client" — here a bony finger reaches in the direction of Mr. Chu — "bite off Mr. Nares' nose. Is that right?"
It is an accusation, a condemnation, a confession of the witnesses' deception.
"Do you mean, sir, to postulate to these good people that my client bit of Nares' nose when you did not actually see the bite?
"How, sir, can you have the temerity to do so?"
And then … and then … "Because I saw him spit it out into the punch bowl."
We all want to explain. But sometimes, it's a bridge too far. Sometimes, the art of life and lawyering is in leaving well enough alone. And saying nothing at all.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.