TO QUESTION OR NOT TO QUESTION, THAT IS THE QUESTION

In litigation, it is tempting for a lawyer to cross-examine with vigor any witness who opposes the position of the lawyer's client. However, the challenge is to know when to cross-examine and when simply to keep quiet and to resist the urge to talk. I have some examples of this challenge from my own experience.

In a contested rate hearing, a customer of a water utility appeared to testify about the quality of water. The customer produced a glass jar allegedly containing a "sample" of the utility's water taken from the customer's faucet. The contents of the jar were cloudy and colorful. Cross-examination of the witness yielded the fact that the water had been collected in a mayonnaise jar which had not been sanitized.

In another case, a wastewater utility was accused of polluting the "stream" into which its treated effluent was discharged. The stream was a low flow, intermittent stream-meaning that unless it rained, the only flow was the discharged treated effluent. A witness for the state EPA testified that the utility's discharge was polluting the stream.

On cross-examination, the witness admitted that he never had walked the stream, and that he did not know that he took his samples downstream of the point where two storm water runoff tributaries and several large storm water drains entered the stream. Subsequent samples of these storm water sources disclosed much higher levels of contaminants than were contained in the effluent leaving the treatment facility. Thus, cross-examination was able to discredit the entire testimony of the witness due to his sampling errors.

On the other hand, I am reminded of one of my most unusual ratemaking hearings. Again, at issue was the quality of water service provided by a utility client. Several customers spoke, complaining that iron in the water was staining their laundry. Finally, a woman testified, holding up her new bra purchased that day and an older one washed in water provided by the utility. Both bras were offered as exhibits, and closer inspection invited. At the close of her speech, she threw the older bra into my face, and clutching her new one, she ran off. After I regained my composure, my only question was whether she wanted the old bra back. No, she gasped. Cross-examination was over.