My debut novel is set in Boston and tells the fictional tale of an expert witness, Dr. Ross Fiore. Ross is an engineering consultant hired by lawyers to provide expert witness testimony in support of their cases in court. He treats his courtroom appearances as theatrical performances. He plays the smartest guy in the room who consistently captivates the jury, makes his lawyer clients look brilliant, and outwits opposing counsel.
I am in the process of querying literary agents in search of representation for The Expert Witness. If anyone has connections in the literary agent or publishing world and likes what they read here, I would greatly appreciate an introduction.
My intent with this story is to engage and entertain the reader while providing a view into a world that many of you are familiar with, but the average reader is likely not. Think of it as a book you would pick up at Hudson News to read on the plane, or possibly a summer beach read. Thank you for reading.
Early cover design concept
All events and characters presented here are fictional, a product of the author’s imagination.
Chapter 1 - Ross Fiore
June 2005
A trial is nothing more than a play presented in the theater of the courtroom. The lawyers and witnesses are the players. The judge and jury are the audience. The best actors know all their lines and perform them from memory. I learn everything there is to know about a case. It’s all in my head. I don’t refer to documents in court. Not that I have a photographic memory. No, I do the hard work of studying and remembering every fact, witness description, code, calculation, technical article, report, or research paper that makes up a client’s case file. My task is to make my lawyer clients look brilliant while making opposing counsel look like plodding dunderheads.
My clients always win their cases. They win their cases because I am very good at what I do.
Expert witnesses are advised to answer questions at trial directly and briefly. “Keep it to a simple yes or no.” Well, that’s for incompetent pretenders with a minimum knowledge of their subject. I’ve made my mark by knowing more about the engineering aspects of legal cases than anyone else in the room. The expert witness is the authority on the subject at hand and must have the confidence, the swagger, the bearing that says, “I know all about this stuff and I’m here, being paid a high hourly rate, to educate you, the judge and jury, on the subject.”
The day my mind betrayed me and couldn’t come up with the words I needed was the day when everything changed.
#
I sat in Suffolk Superior courtroom 303 the day the plaintiffs rested their case. There were three attorneys at the plaintiff’s table. Two of them alternated in the presentation of their case against our client, Uni-Stack Scaffolding. One handled the lay witnesses and the second worked with their expert witnesses. My client, attorney Jake Reynolds didn’t know the third guy’s role. It seemed like a lot of manpower for a plaintiff firm to have committed to a trial. I hadn’t come across these lawyers before. Their firm is in Springfield. It had to be a big investment for them to do a trial in Boston. The court heard heart-wrenching testimony from Brad Oringer’s wife about her husband’s injuries. A few jurors wiped tears from their eyes. Jake looked like he wanted to roll his but kept that to himself. The plaintiff’s last witness was a medical expert who testified to Brad Oringer’s disabilities. It would be a few days before I took the stand, but Jake wanted me in court to observe his initial witness’ testimony.
Jake began his case with Uni-Stack’s owner as the first witness. Jake took him on a tedious journey through his rental contract and established that Uni-Stack had no duty to inspect each piece of scaffolding before it was rented to the customer. He took the erection crew through the process of setting the scaffolding up and established their responsibility to inspect the equipment for damage. Two of them testified they never dropped or damaged any scaffolding parts.
My direct testimony went in just as we rehearsed. Jake introduced several blown-up photos of the scaffolding into evidence. I pointed to them and explained to the jury how the scaffolding structure works. I had some basic drawings of planking on scaffolding prepared. I used them to explain that the planks the workers stand on are set on side brackets that hang off the main scaffold frame in the space between the scaffold and the building. I explained the normal loads on the side brackets from workers, tools, bricks, and concrete. Then we presented a testing sequence video. The video showed the same result repeatedly; a huge press applying 1,000 pounds of force to a side bracket. 25 video clips stitched together showing side brackets numbered one through 25 with no failures. These things just don’t fail, even under that much force. Jake asked for my conclusions and opinion on how the planking collapsed and I gave them, ending with, “The work area planks collapsed when they became overloaded. The middle side bracket may or may not have been in place at the time of the overloading, but either way an excessive load was applied”.
Jake said, “No more questions, your honor,” and took his seat. To my surprise, the third lawyer stood from the plaintiff’s table. I thought he was still in the process of standing when he moved around the two lawyers to his left. Then I saw, he was short. He buttoned his jacket with fat little hands, and I noticed his Paisley tie.
His stride seemed overly purposeful as he approached the stand like he’d practiced this many times. His suit was an impeccably tailored dove gray Michael Kors with a pink folded handkerchief pocket accent. He stopped four feet from me, placed perfectly polished wing tips together as if he was about to dive off a board, and confronted me with large brown eyes hooded under dark caterpillar-like eyebrows. His voice was unexpected; in a deep basso, he said, “Dr. Fiore, Franklin Rose, representing Mr. Oringer.” His teeth looked enormous in his mouth. I wondered if they used him for cross-examinations because his presence is so distracting. In a condescending tone, he said, “I’d like to ask you a few questions about this,” here he hesitated and in a deeper voice, continued, “so-called testing you did of the side brackets.” He delivered his questions in undulating tones, implying disrespect for my expertise, and at the same time communicating his apologies to the jury for my wasting their time. He was playing my game! He was masterful. He met every competent, informed answer I gave him with additional scorn.
In my view, the plaintiff’s experts concluded there was no legitimate technical claim against Uni-Stack after they billed for excessive hours spent doing their own testing and writing their reports. Then they did a poor job of educating Oringer’s lawyers about metallurgical testing so as not to draw attention to the shortcomings of their opinions. The plaintiff’s lawyers resorted to emotional theater, and this well-dressed fireplug was their Orson Wells. Even though his questions focused on technical aspects of our testing he interjected phrases like, “Poor Mr. Oringer” into most of them.
I found I had inched close to the edge of the witness chair and tried to sit back unnoticed. My musings about his tactics gave way to how easy this would be. He was as good as any attorney who has ever cross-examined me, but I could tell he was ill-prepared by his own experts. All my knowledge about the multiple aspects of overstressed steel failures was about to pay off.
This fireplug of a plaintiff’s attorney, asked me, “Dr. Fiore, you reported that you conducted tests, a series of tests, the twenty-five tests where you purposely overloaded the side brackets, where you applied the excessive force that damaged the brackets, how would you describe the manner in which the steel failed?”
I thought, what an awkwardly worded question. He can do better than this. Time to nail him to the wall.
Then something weird happened.
“Mr. Rose, the failures of the brackets in our overload testing are a result of a process where—” and just like that, the words I intended to use were gone from my head, just gone.
What?
The concept was clear as day in my mind. I had the answer. Why couldn’t I access the words I needed? The last thing a performer wants two do in the middle of a show is let there be a long silence. I had to say something.
I opted for bluster. “Counsel, if you are unable to formulate a proper question, I don’t see how I can answer it in a meaningful way for the jury.” Always make it about the jury. If they think you care about them more than the lawyers do, you start to sway their allegiances.
Rose didn’t expect this. He lowered his legal pad as if to gird his loins, and looked at me like, what the hell do I think I’m doing instructing him on the proper formulation of a question?
He stood straight and pulled his tie below the knot, signaling he’d like to choke me, and said, “Move to strike your honor. Unresponsive.” Much to my disappointment, he then restated the question in a well-constructed, grammatically correct sentence. The elusive words tickled my brain but didn’t break through the seafoam I pictured floating over my short-term memory.
I turned to look at the judge and said, “I’m not sure he has laid the full foundation for that question,” I wanted Jake to figure out what was going on and come to my rescue with an objection of some kind, but he was doing what we rehearsed, letting me run with the show while he was busy flipping through the notes in his legal pad.
The judge said, “It’s up to your client to object to the form or foundation of a question, Dr. Fiore. Please answer the question for the . . .”
“Objection, your honor!”
Finally, Jake realized something was up.
“Objection?” said Fireplug, “Objection to what?”
“Sidebar, your honor?”
Jake got it. He didn’t know what was going on, but he knew to buy me some time. Now, he had to make up something to bolster his objection. That was okay. He was good at this, very good. Jake and Fireplug conferred with the judge and then I heard one of Jake’s words; tensile.
Shit! Of course! Jesus, what the hell is happening? Why did those words elude me?
The judge told everyone to step back and granted that Fireplug could ask his question again. Jake’s objection was overruled, but he wasn’t worried about losing that argument.
Fireplug asked the succinct version of his question again, “Dr. Fiore, when you conducted the tests on the side brackets where you applied enough force to make them fail, how would you describe the manner in which the steel failed?”
I answered competently, “The deformation of the steel brackets is elastic up to a point where, with additional loading, it becomes plastic and deforms past the point where it can recover. When loaded to failure, the steel passes through the plastic region to its ultimate tensile strength and then fractures even without further increase in the load.”
The rest of my cross-examination went fine. Fireplug abandoned his attempt to discredit our testing, finished with his questions, he strode away in disgust, glanced at the jury, and shook his head.
I was rattled.
Jake did his redirect. He countered with his own empathy for Oringer, but worked at showing how uninformed Fireplug was about the whole business of metallurgical testing. The cadence we established in question and answer was like a call and response. I accelerated the speed of my answers and Jake matched with his questions. I had no further trouble accessing words and you could practically hear a drum finale when we finished. Some of the jurors were smiling. They knew who the technical heavyweight was here. Fireplug did too. He spent most of Jake’s re-direct flipping back and forth through his notes looking for something that apparently wasn’t there. The judge asked him, “Re-cross, Mr. Rose?”
He said, “No more questions for this witness, your honor.”
I was still confident the jury would find in our favor. But after court recessed for the day, I walked outside into the contrasting cool of a light afternoon harbor fog and early summer heat from the bricks of Pemberton Square and felt—no exhilaration. No pride in what I had just accomplished. For the first time ever, I felt what I have always figured other experts feel when they manage to get through a cross-examination without getting their balls handed to them; lucky.