Cross-examination of a sympathetic witness can be the most difficult part of a trial. It requires a deft touch to make your point without appearing as if you are bullying a witness, turning the jury against you. King & Spalding’s Jeffrey Furr, in Gray v. R.J. Reynolds, provided a veritable master class on that delicate balance.
Ethel Gray sued Furr’s client, R.J. Reynolds, claiming the tobacco maker’s decades of concealing smoking’s dangers fueled her husband Willie Gray’s nicotine addiction and caused a host of smoking-related diseases. Whether Willie Gray knew the dangers of smoking before he switched to RJR’s Winston brand cigarettes was a key to the case.
Ethel Gray, an 81-year-old widow in frail health when she took the witness stand, was a stark contrast to Furr, the courtroom’s face for the country’s second largest tobacco manufacturer. It was a potentially damaging cross-exam for Furr and RJR: push the witness too hard and risk alienating a jury that sees you as a bully to an elderly woman. Don’t push hard enough and fail to make vital points to your case.
However, Furr found a perfect balance during his cross-examination of Gray. He was helpful without being patronizing, politely reminding Gray of her prior deposition, approaching the witness stand repeatedly to walk her through the document, and gently asking her to wait until he finished a question before she answered:
“Ma’am you’re doing a great job up there. I know you’re a little nervous and this is hard. But I have to ask you one thing, OK? This lady here (the court reporter) can only record one of us at a time? And I’ll do my very best to wait until you’re done speaking, so that we’re not speaking at the same time. And if you would try to do that, it would be really helpful to her, OK?”
At the same time, he persistently questioned Gray on critical points in her testimony, while knowing when to back off on less important questions. In one exchange, he asked her about her husband’s belief that Winston cigarettes were "safer." Gray initially refused to say that her husband’s switch to Winstons implied he must have known cigarettes in general were dangerous. Yet Furr neither conceded the issue nor appeared aggressive. He approached the question from various angles until he received the answer he was looking for. Immediately afterward, when Gray, who was suffering from health problems, became flustered, he quickly withdrew a follow-up question, his key point already made.
Gray ultimately would leave the stand later that afternoon because of health issues, returning to testify later in the trial. Yet Furr’s balanced approach to Gray’s questioning bolstered the defense’s case without alienating the jury. It was a skillful cross-examination that delivered an important verdict for RJR.
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