Humpback whales circle schools of krill, blowing giant bubbles deep under the ocean. The whales know the krill will not swim through bubbles. The “bubble wall” conveniently cages the krill and the whales expend minimal energy for their meal.
Like the krill, your adverse witness must be “caged” in his or her testimony before you impeach! Too many lawyers head in for “the kill” without eliminating all exit routes.
I once saw a perfect Perry Mason moment ruined in a medical malpractice case because the plaintiff’s counsel failed to create his “bubble wall.” The case involved failure to diagnose and treat stroke with devastating injuries. At deposition, the defendant admitted the standard of care was governed by a professional organization. The organization maintained extensive publications on stroke. Plaintiff’s counsel identified guidelines completely contrary to the treatment the defendant provided. The attorney planned to use those guidelines as the “gotcha” moment. However, because the plaintiff’s attorney failed to pin the defendant down on the application of the guidelines to the particular type of stroke involved, the defendant had an easy out.
“Those guidelines,” the defendant smirked, “apply to ischemic stroke and this was embolic.”
The defendant then proceeded to give the jury an impressive lecture on embolic stroke while the plaintiff’s counsel wilted with embarrassment.
When developing impeachment, don’t forget your “bubble wall.” Wall off all exit points and secure them well in advance, or you might be the one getting “schooled.”