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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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