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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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