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IBA: Controlling the Difficult Witness

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By John F. Kautzman,
Ruckelshaus Kautzman Blackwell Bemis & Hasbrook

One of the most important techniques for a trial lawyer to learn is witness control. This is obviously important in making your case clear and understandable in direct examination, but it is even more important when trying to destroy your opponent’s case through cross-examination.

Witness control, first and foremost, assumes:

1. You have achieved a mastery of the Trial Rules and the Rules of Evidence;

2. You understand the proper mind set —“YOU ARE THE REAL WITNESS!”; and

3. You know and can apply fundamental principles of cross-examination.

There are countless opinions on what makes a successful cross-examination, but the fundamental principles remain the same. Among these principles are three essential rules: 1) use primarily leading questions and proper pacing, 2) try to add only one new fact or topic per question, and 3) cross-examine in a logical progression toward a specific goal.

The most accomplished trial lawyers will also bear in mind these fundamentals:

• Use topical (not chronological order) for most cross-examinations.

• Lay the theme of your case early and often.

• When attacking credibility, show bias, interest, or motive early in your cross-examination.

• Always start and end with a powerful point. Never start or end with a risky proposition.

• When conducting an impeachment, do the cleanest (most easily achieved) impeachment first and last.

• Never let the witness dictate a change in your game plan.

• Place risky material which reveals your opponent’s best arguments in the middle of your cross-examination.

Mastering all of the fundamentals is only half of the job. Some witnesses require even more skill. Often the greatest fear of the cross-examiner is the difficult or runaway witness. Examples include witnesses who are non-responsive, evasive, rambling, and hostile. These witnesses pose a serious threat to the cross-examiner, and challenge the lawyer for control of the courtroom.

Witnesses like this can give trial lawyers a lot of sleepless nights and make us reconsider our career choice. But various techniques can help you establish — and reestablish — control.

Control must be achieved using professional techniques. Do not argue with the witness, talk over the witness, make a childish remark to the witness, or engage in any other unprofessional conduct which will make the lawyer look bad to the jury. There is no need to use loud, argumentative, or offensive language if you master proper cross-examination techniques. Remember: sometimes the witness becomes non-cooperative so quickly that control is not really lost but instead was never really established. In any event, the lawyer must achieve witness control.

Techniques for controlling a witness are usually reserved for cross-examination (or a quasi cross-examination with a hostile or adverse witness). It is not something that you would do on a normal direct examination, because that should be the witness you prepared and they should not wander out of control. If you start having problems with that, you need to rethink your preparation for direct examination.

Controlling a witness does not have to look rigid or overbearing. In other words, you can sometimes let the witness go and still actually maintain control as long as you know what point you want to make with the witness.

Of course, the basic techniques of impeachment are great tools for establishing control and retaking control. Prior inconsistent statements, impeachment by use of criminal convictions, and other related techniques all help you remind the witness who is in charge

Remember, all this comes back to the key purposes of cross-examination — to impeach the credibility and accuracy of adverse witnesses, and to take opportunities to bolster your theory of the case.

NEVER surrender control of the courtroom to anyone. Use your words and your delivery to maintain control and respect. If not required by the Judge’s local custom, don’t ask for permission to walk around the courtroom, or to approach the witness, and don’t constantly ask the judge for help. You should be the “Star” of that particular moment in the “Show,” and you should use that opportunity to restate the points that are favorable to your case.

Next: Specific Techniques for Controlling Challenging Witnesses

Reference material and suggested reading : Fundamentals of Trial Techniques by Tom Mauet, Cross Examination-Science and Techniques by Larry Pozner and Roger Dodd, The Litigation Manual – A Primer for Trial Lawyers from the American Bar Association, and The Power of the Proper Mindset by James W. McElheney.•

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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