Friday, 28 June 2013 07:52
Subjecting an adverse witness to the crucible of cross-examination is a critical right. The deprivation of such a right prevents a party from the possibility of having their “Matlock moment” wherein the adverse witness crumbles under the intense questioning of an attorney and finally reveals the truth. While very rarely as dramatic or revealing, the right to subject a witness to cross-examination is nevertheless an important one. In one recent case, a contractor lost on appeal before the Appellate Court of Connecticut after it was determined that the contractor failed to avail himself to cross-examination in a trial over his mechanic’s lien.
By Gina Helou
Pursuant to a contract, the contractor supplied materials, labor and other services for construction improvements to two lots of buildings owned by a limited liability company. Due to lack of payment, the contractor sought to foreclose on his mechanic’s lien for the supplies and services provided. The contractor claimed he was owed over $100,000 for the work and supplies, and the company refused to pay the outstanding debt, claiming the contractor had not performed his duties in a workmanlike manner or pursuant to the terms of the contract. The contractor sued under his mechanic’s lien for the unpaid balance.
The trial lasted several non-consecutive days. The contractor testified on direct examination as to the services and supplies he provided. Days after the direct testimony, the company attempted to cross-examine the contractor. However, due to a medical condition involving his voice, he was not available. The court continued the trial date, but again he was not available, this time due to a work conflict. The court ordered the company to continue with its proof after the contractor’s attorney. The contractor never again appeared before the court for his cross-examination, with his attorney claiming he could not be absent from work again for fear of termination. Therefore, the company moved to strike his testimony on the basis that the incomplete testimony renders all of his testimony inadmissible. The trial court disagreed and granted judgment in favor of the contractor, admittedly relying on the contractor’s testimony in its decision.
The trial court granted the contractor’s request for payment for part of the lien in an amount over $40,000. The company appealed the decision.
On appeal, the Appellate Court of Connecticut stated that because the company was deprived of its right to cross-examine the contractor at the trial level, and because the trial court refused to strike his testimony, the trial court’s decision to award the contractor his partial mechanic’s lien must be reversed. The appellate court stated “the test of cross-examination is the highest and most indispensible test known to the law for the discovery of truth.” The appellate court held that the trial court should have stricken the testimony of the contractor, especially since his testimony was a deciding factor in the trial court’s awarding of the judgment. The case was remanded to the trial court for a new trial.
The moral of the story is that contractors, in order to ensure their mechanic’s liens are upheld, will need to take all necessary steps in litigation, which could include testifying on cross-examination if the matter proceeds to trial. A contractor may not give the opposing attorney his “Matlock moment” but he or she needs to at least provide the possibility.