It’s the Law: The Problem with Witnesses

One of the more memorable experiences of my law school days occurred on the first day of Criminal Law. We students sat, thoroughly intimidated, in the huge lecture hall as our nationally renowned professor introduced himself. In the middle of that introduction, however, a woman ran onto the stage crying melodramatically for help. A few seconds later, another woman appeared chasing the first woman around and around the stage. Finally, the pursuer yelled, “Eat lead you dirty dog,” pulled out a cap pistol and fired about 20 shots at the first woman. After firing all of her caps, she ran off stage, all the while laughing maniacally. Meanwhile the first woman stumbled around for a few minutes pretending to die with 20 slugs in her. When she finally expired, a couple of students dragged her off by the feet and our professor resumed his lecture.
At the end of the class, 1 ½ hours later, the professor suddenly announced that the police had caught the dastardly villain and called upon us brilliant law students to crack the case by identifying her. He promptly paraded out a half dozen women and had each of them repeat the phrase, “Eat lead you dirty dog.”
He then asked for a show of hands as to whodunit. Only about a third of the class correctly identified the culprit (who was hauled off swearing revenge on every witness who identified her). He then asked a question, “If you see footprints in the snow, how certain are you that a person walked there?”
His point was that eyewitness accounts are highly unreliable while circumstantial evidence, routinely vilified on TV and in the movies, is often more reliable. That demonstration left an indelible impression and I’ve used it to good advantage over the years. Although I always listen to what witnesses have to say, other evidence, such as documents in a civil case, are often far better at reconstructing exactly what happened.
This hit home on a case very close to home: Scotts Valley High School. Many are familiar with the lawsuit brought by SVHS against the contractors who built it. While the main lawsuit was settled with SVHS netting several million dollars, few know that one contractor brought a lawsuit against SVHS for failing to pay for properly conducted services.
A lawyer in Sacramento had been representing the contractor, but asked if I would take over. Before taking the case, I was asked by the district’s lawyer to sit down for an informational interview with a man named Crosswhite from the Zahn Group, who was the construction manager at the high school. (The Zahn Group, by the way, was not licensed as required by law which may explain why the high school suffered so many problems.) The purpose of the meeting was to show me that the contractor’s lawsuit had no merit.
The construction manager was extremely convincing face to face. He had all of his facts at his fingertips, immediately coming up with even the tiniest details. His message was consistent – the contractor wasn’t owed a dime because he failed to do what was told of him and his work had to be replaced by another contractor. There was just one problem. When I reviewed the job file, none of the documents, some of which were signed by the construction manager, matched up with what he said. Ordinarily, I would ascribe this incongruity to faded memory. But in every instance, every false statement protected the school district (and, of course, himself) and damned the contractor. Up until this time I naively believed that I could tell when a witness was lying – that there were telltale clues. This construction manager, however, completely fooled me until I saw the documents. I suppose he believed that I wouldn’t review the other evidence.
Needless to say, his testimony on the witness stand became a complete debacle when confronted with the documentation. The arbitrator stated, “The credibility of the witnesses is a serious issue….The evidence demonstrates the …improvements were poorly planned and mismanaged by Zahn and the testimony of Zahn’s representatives, particularly Crosswhite [sic], is doubtful.”
In the end, witnesses who lie or simply can’t perceive correctly create huge problems for everyone. Ultimately, the school district ended up paying three times as much to my client as they would have had the construction manager simply told the truth. Is this the school district’s fault? No, they were victimized as much as my client. (Well…there is the problem of not having assured that Zahn was licensed, but even licensed contractors can lie.) Human imperfection demonstrates why we must never rely on just witness statements but must utilize all the evidence to arrive as near as we can at the truth.
Gary Redenbacher of Scotts Valley is an attorney in private practice. Contact him at ga**@re*********.com