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IBA: Classic Techniques for Controlling Challenging Witnesses

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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. 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.

  2. 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?

  3. 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

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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