The Power of Cross-Examination--The Sippy Cup Caper

We've been a delinquent little blogger--too much golf and all that, we're afraid.

One item that caught our interest this weekend, however, was a Post story about a lady getting harassed by the TSA at National Airport (it'll always be "National" to us) because her child's sippy cup spilled.

It reminded us of the one thing that's really great about being a trial lawyer: cross-examination.

The story started out in the blogosphere. Monica Emmerson, a former Secret Service agent, posted a little account on a website for city parents, where she said she'd been harassed by TSA agents on a recent trip, causing her to miss her flight and generally riling up her family.

A blogger, Bill Adler, saw the note, then called Emmerson to get her story, which he posted on his blog, where it was soon picked up by other bloggers. It was a great story--Big Brother; David versus Goliath; police state versus helpless woman. In her account, Emmerson said that as she went through security with her young son, the TSA screener seized her boy's sippy cup and told her she'd have to empty it out of any liquids if she wanted to keep it for the trip. Then, while trying to comply, she accidentally spilled the cup when her son started crying, after which security was called and Emmerson was forced to clean up the spill in front of watchful police.

This is where cross-examination comes in. In court, everyone has a good story. But all stories have two sides, and sometimes one is decidedly better than the other.

In this instance, there was a video, which TSA decided to release.

Here's how it would go in court:

Curmudgeonly lawyer: Now, Ms. Emmerson, you testified a moment ago, under oath, that you accidentally spilled your son's sippy cup, is that right?

Emmerson: That's correct, it was an accident.

CL: And after you accidentally spilled the sippy cup, security officers moved in and detained you without any provocation, correct?

E: Correct.

CL: Now, Ms. Emmerson, were you aware that the security area at the airport was under video surveillance?

E: (Confidently smiling at jurors) No, but I'm not surprised.

CL: And if such video existed, it would support the story you just told to the jury under oath, is that right?

E: (Squirming slightly) Yes, that's right.

CL: Your honor, we request permission to show Defense Exhibit 1, a video excerpt. [After the inevitable objection is overruled by a Judge who's now awake and amused at what's likely to happen next, the video plays.]

CL: Now, Ms. Emmerson, isn't it a fact that the video just seen by the jury clearly shows you screwing off the top of the sippy cup and deliberately dumping the contents on the floor in the middle of the security screening area?

E: Well, I don't think that's what it shows.

CL: So, your idea of accidentally spilling from a sippy cup is to screw off the top and dump it on the floor, is that right? (This question is accompanied by exaggerated movements of opening a sippy cup and dumping its contents on the floor.)

At this point, it doesn't matter what she says. The jurors are all nodding, the judge is smiling--finally a moment of drama in the courtroom--and the few spectators are murmuring. A good lawyer then says "no further questions" and sits down.

But, for most lawyers cross examination is so much fun that they don't sit down now--having achieved the kill, they go for more. And that's where it all breaks down. Pretty soon they're on to something they haven't really thought through and the witness recovers and the jury starts to think the lawyer is just being mean and the lawyer's point gets lost. Only on television does it happen so crisply.

We applaud the TSA for giving us this cross-examination moment by releasing the video. We know it's a hassle, for all of us, to have to go through the screening; and we doubt that we're any more secure by virtue of regulations requiring sippy cups to be empty when going through the checkpoint. But, when Ms. Emmerson deliberately dumped her son's sippy cup on the floor, she deserved to be required to clean it up. We don't think she's worthy of being a blogosphere hero.