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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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