Persuasion Matters

Dr. Bull, Benny Colon and Chunk Palmer brainstorming trial strategy

A Salty Season Finale for ‘Bull’ Offers Great Tips for Witness Examination

Dr. Bull, Benny Colon and Chunk Palmer brainstorming trial strategy

When most television shows are wrapping up a season, they aim to hook the viewer into returning after the long summer hiatus. The “Bull” season finale ended with a bang, but for me, that bang was closer to a laugh. Even my 85-year old mother texted me to say, “Good luck writing about that one.”

Thanks, Mom.

The finale had a decent legal story, but it was full of side plots involving the personal lives of three main characters: Bull, Benny Colón (the lead attorney), and Marissa Morgan (the ear-piece whisperer). The producers know that in order for viewers to give a hoot (and come back in the fall), the audience needs to connect with the characters, and this holds true for all storytellers, including those who work in the legal industry.

In the first scene of this season’s final episode, Pillar of Salt, a frantic Angela Newton rushes her 3-year-old step-daughter, Lizzie, into the ER. The medical team notices bruises on Lizzie, which leads to some Q&A with the police—who must have been milling around the hallways because they were both Johnny-on-the-Spot. Sadly, Lizzie doesn’t make it.

In the blink of an eye, Angela Newton is arrested for second degree manslaughter for allegedly force-feeding Lizzie a lethal overdose of salt. Huh. That’s not some thing you hear every day.

Her husband, an über-wealthy hedge fund guy, convinces Bull and Benny to defend his wife. Mr. Newton shares that Lizzie had a “big appetite” and would have tantrums related to food issues. (Extra credit if you can figure out where this is headed. Not bragging, but I did. Okay, maybe I’m bragging.) He insinuates that Tara—Lizzie’s biological mother—rejected attempts to seek medical care for Lizzie’s issues, and paints her as the bitter, jaded ex. He forks over a big retainer and $5 million in bail money.

There’s a jury trial but very little jury consulting to be seen in this episode, other than Bull fretting about their challenging case. It’s not very often that the show graces us with multiple segments of trial testimony, so I want to talk about a few of the cross-examination techniques, as there were nuggets that could be used effectively in the real world.

**SPOILER ALERT** 

Using a Witness’s Own Words to Damage Credibility

Early in the case, the prosecutor calls Susan Grey, a “Baby Jingle” teacher. The day before Lizzie died, Ms. Newton arrived frazzled and extremely upset with Lizzie, who had just made a huge mess in the pantry before they left for class. Angela told her that Lizzie was behaving like the little girl in The Exorcist, that she wasn’t sure how long she could take it, and that she came “this close” to leaving her in the car. Grey was adamant that Angela’s words were out of the norm, and implied that they foreshadowed Lizzie’s imminent death.

Benny isn’t entirely sure what to do with this bombshell until, seconds before he begins his cross-examination, the TAC team emails him a screenshot of one of Grey’s recent social media posts, in which she writes “If my idiot neighbor doesn’t stop blocking the hallway with his (expletive)ing bike, I’m going to shove it up his (expletive).”

Benny used Grey’s own words to illustrate that, sometimes, people just vent and that their words—no matter how they may sound—do not necessarily result in action. In fact, he pushed even further by asking if her neighbor died, she should be prosecuted for murder. Her answer didn’t really matter because the point was made.

Using a witness’s own words or personal experiences to normalize an event, feeling, or situation can be quite compelling. Be willing to dig into Facebook, Twitter, Instagram, text messages, or any other form of digital communication. You’re not limited to email or written correspondence (unless of course, the judge or rules of procedure tie your hands). Every now and then, a golden nugget is unearthed that can change the trajectory of the case.

Using a Witness’s Personal Relationships to Damage Credibility

The prosecutor also calls Tara, Lizzie’s mom, who testified that Lizzie was her “portable joy machine” and that she disagreed with Angela’s disciplinary methods. Why? Because Angela put a red pepper flake on the 3-year-old’s tongue. Needless to say, the mysterious wall-of-cyber-shadow-jurors was not impressed and by this point, and they were ready to send Angela on her way with an orange jumpsuit and a toothbrush.

Bull instructs Benny to push hard, but Benny has serious reservations.

“She’s a grieving mother. I don’t want to push,” he says. “It’s a high-risk move and the jury could turn on us.”

Yep. They could.

It’s always hard to cross-examine the loved one of a decedent, but in most circumstances, it must be done. Benny does push, but he does it in a roundabout way. Instead of attacking her parenting skills or relationship with Lizzie, he frames his entire cross-examination around how well she knew Angela.

Risky, yes, but it worked. Benny crafted a series of questions that illustrated what Tara didn’t know about her own daughter, things a jury would likely have expected her to know.

Q: Were you aware why my client used a red pepper flake?

A: Because she hated my kid.

Q: Did you know that Lizzie had an enormous appetite?

A: Not at my house.

Q: Were you aware that Lizzie ate lip balm?

A: No.

Q: Did you know that her pediatrician recommended the pepper flake? The same pediatrician that you used?

A: No, I was not aware of that.

I’ve seen this tactic used very effectively in custody disputes, and personal injury or wrongful death matters involving a minor. If you attack too hard or seem cold and uncaring, it usually backfires. But if you are able to shift the narrative from the witness’s personal grief or loss to the quality of the witness’s relationship with the child, you can thread that needle between being rightfully inquisitive and an abusive jerk.

Using a Witness’s Lack of “Homework” to Damage Credibility

The night before the defense team puts on any evidence, Dr. Bull and the TAC teammates sit down to come up with witnesses. (Um, shouldn’t they have thought about this weeks ago?). They flip through a scrapbook that Angela made of Lizzie, and decide that Mr. Newton can use it to help personalize the relationship Angela had with Lizzie.

But the scrapbook looked exceedingly worn, and Bull even notices teeth marks. This—combined with comments that the wallpaper in Lizzie’s room was peeling, the rug was tattered at the edges, and the stuffing in a cushion was pulled out of a seam—leads Bull to an a-ha moment. But of course! Lizzie had pica! (FYI: pica is an eating disorder marked by the consumption of nonfood items, such as chalk, hair, dirt, or even metal.)

The expert witness fairies blessed the defense with a medical expert who took the stand (are you ready for this?) the very next morning. M’kay. He tells the jury that pica is very rare (but in reality, it’s really not that rare) and can be difficult to diagnose in small children (true). He also shared that ingesting sodium tends to minimize pica-related cravings (I have no clue whether this is accurate), so Lizzie most likely ingested the lethal dose of salt herself.

During her cross-examination, the prosecutor took advantage of the one thing she could: Dr. Sommerville never met Lizzie, never treated Lizzie, never spent time with her parents, and never saw her ingest anything unusual (or anything for that matter, since they never met). She tried to chip away at whatever credibility he may have had by questioning whether he did his homework or had enough reliable information to reach his opinion.

Jurors around the country universally expect expert witnesses to do their homework. In the event opposing counsel has an expert who failed to look at relevant data, talk to people with knowledge, or consider reasonable explanations or calculations, pointing out what he/she failed to review can be a credible way to take their mojo down a notch. Pointing out an expert’s tunnel vision, or making a choice to examine only favorable data, can sometimes lessen the power of the expert’s opinion.

So, there are my real-world tips.

**MAJOR SPOILER ALERT** 

Moms Reconcile. Plus, A Bullish Bun in the Oven?

Now you may be wondering, how did it end? What are all the crazy side stories?

During Dr. Sommerville’s expert testimony, the ex-wife begins to realize that her daughter had a medical condition and was not murdered by the woman who “replaced her.” And Bull knows it, so he does what any jury consultant would (not) do: He visits the first Mrs. Newton at her workplace and appeals to her sense of right and wrong. He pulls at her heartstrings by telling her that Angela “loved [Lizzie] very, very much” and would go to prison without her testimony.

The next day, Tara takes the witness stand again—this time for the defense—and admits that Angela was the first one to raise concerns about Lizzie’s eating habits, but that she just brushed it off as something kids do. And that she didn’t want to admit that “this woman” knew her daughter better than she did.

The jury acquits. The Moms hug. Dad joins in.

But wait. It gets better. In a nutshell, Marissa, Bull’s ear-piece-whisperer, learns that her frozen eggs are viable. She’s over the moon, but her hopes come crashing down when she learns that her husband’s sperm can’t swim. Rather than share the heartbreaking news with him, she lies and simply says, “Don’t hate me, but I’ve changed my mind: I no longer want a baby.” Love is complicated.

We also learn that Benny’s sister, Izzy—who just so happens to be Bull’s ex-wife—is getting yet another divorce. And Benny discovers that Bull and Izzy had a romp in the hay at his father’s funeral a few months ago (classy, huh?), which ticks him off to no end. Benny quits, and punches Bull smack in the jaw.

After the trial ends, as Bull gets in the town car without Benny, his sullen mood suddenly shifts when he discovers Izzy sitting in Benny’s spot. Bull laments the loss of Benny, to which Izzy says something like, “He won’t be gone long; he’s going to be an uncle. I’m pregnant. You’re the daddy. Kiss me you fool.” And he does.

It left me both speechless and in a fit of laughter. But I’ve already been recruited to be your trusty columnist for Season 4, so the saga will continue after a much-needed summer break.

If you go through “Bull” withdrawal, or miss my witty analysis, I hope you’ll visit my blog. That’s where this real-life jury consultant writes about real-life jury consulting and offers real-life trial strategy advice.

Happy Summer, everyone!

 

This article was originally published by Texas Lawyer on May 20, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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