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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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