ILNews

IBA: Classic Techniques for Controlling Challenging Witnesses

Back to TopCommentsE-mailPrintBookmark and Share
kautzman-john-mug Kautzman

By John F. Kautzman
Ruckelshaus Kautzman Blackwell Bemis & Hasbrook


From the onset, let the witness know that you know the case, and you know the facts, better than he does. Pack your early questions with plenty of detail, so the witness already knows that you have a command of the facts, and his fear of embarrassment might make him think twice before sparring with you. For example, if the case involves a specific intersection where an accident occurred, walk through a detailed description of that intersection, pointing out tiny landmarks that even he might not be sure of. The time that you take in the early part of your examination to force the witness to respect your knowledge will pay huge dividends by the end of your examination.

This also has the benefit of giving you an air of authority over this case. It helps your credibility with the jury, and implies to the witness that if he tries to take you on, you will prove to the jury that he is wrong and thereby embarrass him.

Another technique in witness control is asking only short questions, designed to be “building blocks” based upon one concept at a time. Short questions are less likely to be objectionable to the other side, and therefore you don’t risk letting the other side upset the flow of your examination. Secondly, short questions are less likely to confuse the jury, and the jury will be able to watch you build your pyramid of proof. Thirdly, and most importantly, the narrow scope of your question gives the witness fewer avenues of escape. Therefore, there is less ability for him to take control, and a much greater chance of your keeping control.

Use leading questions. Now I did not say ask only leading questions – I said “USE” leading questions. A good trial lawyer will tell you that there are situations which require you to deviate from leading questions. Sometimes, simply for style reasons you need to change your pace and ask non-damaging questions in an open way. Other times, you are simply trying to pound on your theory of the case, and you really don’t care how the witness answers the question. Other exceptions exist as well. However, those exceptions should be used sparingly. Even on those rare occasions when you deviate from leading questions, make sure you only do it in an area where you have thought through the consequences. Don’t box yourself into an open-ended question and then allow the witness to hurt you with his explanations.

Always conduct your examination in such a way that there is a point! Elicit the required information and stop. Otherwise, you will be faced with the lawyer’s nightmare of asking one question too many. Doing this will almost certainly allow the witness to destroy an effective cross-examination with a last minute flippant answer or explanation.

Another method of controlling the witness is to simply let him know that you already have him locked in, and that you are not going to let him stray from that previous statement. You may even wish to remind the witness about the prior statement at the beginning of your examination by reminding him that he made a sworn statement not too long ago and that due to the rules of evidence, it is now necessary for him to testify in person concerning the subject matter. In this way, you are subtly (but very clearly) reminding the witness that no matter how clever he thinks he his, you intend to restrict him to his previous statement.•

Next: Techniques for Controlling Challenging Witnesses That Work, Some with Risk

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  2. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  3. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  4. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  5. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

ADVERTISEMENT