Brian Beecher · Roger Dodd · Patricia Kuendig
Cross-Exam Jujitsu: The path to a $41.95M verdict against Walmart
August 29, 2023 5:30 PM||TLU n Demand
On November 23, 2017, a mentally ill homeless man walked into the San Jacinto, California Walmart store. The homeless man walked over to the sporting goods section and took a bat off the shelf. He then roamed the aisles of the Walmart with the baseball bat. He found two unsuspecting shoppers—husband and wife, Carlos and Rosalia Fernandez (both in their late 50’s/early 60’s)—and he surprised attacked them from behind. The homeless man used the baseball bat to repeatedly strike both Carlos and Rosalia in the head. He then dropped the bat and tried to exit the store. Other shoppers stopped him and he was arrested. The homeless man was found not mentally competent to stand trial and was (and is) institutionalized in a mental facility.
Carlos and Rosalia Fernandez sued Walmart for their injuries. Walmart denied liability. Walmart’s position was that the homeless man was responsible the incident, not Walmart. Walmart also argued that Carlos suffered a skull fracture, but no lasting brain injury. Walmart argued that Carlos’ on-going symptoms were from an injury Carlos suffered 25 years prior when he fell out of a tree. Walmart also argued that Rosalia had made a complete recovery and that any symptoms she suffered after the incident were from somatoform disorder and/or caused by her history of depression.
What is jujitsu cross-examination?
Jujitsu is a martial art used for close combat fighting. Jujitsu revolves around the concept that a smaller, weaker person can successfully defend themselves against a bigger, stronger, heavier opponent by using leverage and weight distribution so that the movements, strength, and size of the opponent his used against the opponent. Mr. Beecher has created this style of cross-exam to use the witness’s hostility, defensiveness, and adversarial nature against them—and also to arm the jury with the important knowledge of the facts and facets of the case, so that the witness will unwittingly contradict or fail to align with other aspects of the Defense case. When this happens, the witness is providing truthful and complete answers that resonate with the jury, but (unbeknownst to the witness) prove the Plaintiffs’ case.
The witnesses:
Russell Hinds, Walmart’s Senior Manager of Global Security and Facility Security
During his direct, Mr. Hinds championed the Walmart’s Facility Protection Plan as being proof that Walmart acted reasonably at all times and was not responsible for the harm to the Plaintiffs.
Through a jujitsu cross-exam:
1) The witness demonstrated that he knew less about risk management than the jury.
2) The witness demonstrated that the Facility Protection Plan could not perform the tasks the Defense claimed it could.
3) The witness demonstrated that the Facility Protection Plan showed that Walmart and its attorneys disagreed on critical facts.
Dr. Sara Siavoshi, Walmart’s retained neurologist.
During her direct examination, Dr. Siavoshi explained to the jury that she believed that Carlos had suffered a concussion and made a full recovery; and that Rosalia had not suffered any sort of permanent or long term injury from the baseball bat attack.
Through a jujitsu cross-exam:
1) The witness herself explained to the jury that her role in this case was different from a treating physician.
2) The witness established $750.00 per hour as an appropriate value for a person’s time.
3) The witness proved that the Defense opening statement was misleading.
4) The witness established her agreement with the Plaintiffs’ case and her failure to fully consider important facts.
5) The witness wore the black hat.
Joseph Schrauder, Walmart’s VP of Asset Protection
During his direct examination, the witness testified that Walmart’s store security is not a corporate level decision and that baseball bat attacks at Walmart stores does nothing to demonstrate a trend.
Through a jujitsu cross-exam:
1) The witness gave Plaintiffs’ counsel permission (from the jury) to do a full impeachment cross.
2) The witness proved that the Plaintiff’s theme of the case could not be rebutted.
Oscar Grejeda, the technician for Walmart’s neuropsychologist
During his direct examination, Mr. Grejeda testified that he properly administered neuropsychological examinations of the Plaintiffs, the results of which were used by Walmart’s hired neuropsychologist to deny any brain injury to either Plaintiff.
Through a jujitsu cross-exam:
1) Mr. Grejeda revealed his intentional efforts to avoid being held to the standard of the test manuals.
2) Mr. Grejeda made a live demonstration of his willingness to tell multiple versions of the truth.
3) Mr. Grejeda made a live demonstration of Mr. Grejeda’s willingness to lie by omission.
