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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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