IBA: Classic Techniques for Controlling Challenging Witnesses

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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.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues