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IBA: Techniques for Controlling Challenging Witnesses That Work, Some with Risk

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kautzman-john-mug By, John F. Kautzman, Ruckelshaus Kautzman Blackwell Bemis & Hasbrook

Techniques of witness control are numerous and none should be overlooked, no matter how basic they may seem. For instance, when cross-examining a difficult witness always maintain eye contact. Avoiding eye contact is often interpreted as weakness. By directing your full attention to the witness’ eyes you serve non-verbal notice that you expect direct answer to your questions.

Be aware of body positioning and movement. While you are maintaining eye contact with the witness, you must stand firm and still as you await a response. This is necessary to convince the witness that all eyes are on him and the entire courtroom is waiting for a straightforward answer to the question that is before him.

Another good basic technique is to simply re-ask the same question. Thus, if you get a non-responsive answer, repeat the question once or twice until they get the message and answer the question. For example, without taking your eyes from the witness, slowly ask the question again in exactly the same words and the same tone of voice. This controlled repetition emphasizes to the witness, the judge, and the jury that the witness is refusing to answer a simply straightforward question.

A softer corollary to simply repeating the question would simply be to say “my question was” and then repeat the question. It sounds like you are trying to be more helpful than confrontational.

If you have received a long answer that beat around the bush and tried to confuse the real issue with a lot of window dressing, you might simply respond to such an answer by saying “so your answer is yes”. Depending on your demeanor, this can also be a more kind and gentle way of getting a witness back on track.

Many times using the formal name or title of the witness will remind the witness that he or she is risking embarrassment or humiliation. By using a formal name or title, (such as “Doctor or Professor”, did you not understand my question), the witness is made aware that you mean business.

Sometimes you can ask the court reporter to simply read the question back after your efforts have failed to get a simple answer to a simple question. However this is most effective when there is a stenographic reporter. In a more modern courtroom that just uses a tape recorder, that technique can be cumbersome. Yet another effective technique is called the “spontaneous loop”. A loop is the repetition of a key phrase. Often times, by listening closely to the witness’ answers, you will find a word or phrase that is helpful to you. In that instance, you simply loop the helpful phrase back to the witness. This technique helps silence rambling witnesses because they start to fear hearing their own words spoon-fed back to them. For example, if in the middle of a long rambling answer, the witness says that we did thus and such “like a normal family would”, the cross-examiner asks a series of follow-up questions such as, “so like any normal family you did this, and like any normal family you did this, and like any normal family you did that” etc.

There are a couple riskier techniques you might consider such as a physical interruption to a rambling answer to get the witness back on track. The most typical technique in this regard is the lawyer simply holding their hand up like a traffic cop “stop” signal. In essence, the lawyer has silently interrupted and the witness will stop, allowing the lawyer to restate the question and thereby refocus the answer.

Another physical technique that can be used, is simply walking back to counsel table while the witness is engaged in a lengthy non-responsive answer, sitting down, and staring down at the table as you let the witness ramble. The witness will usually sense the confrontation and stop, which will allow the lawyer to take a deep breath and slowly restate the question. This is a powerful technique, but since it is fairly insulting to the witness, it must be reserved for a witness who is clearly and completely worn out his welcome with the jury. Otherwise, (if used too quickly) you risk offending the jury by making the lawyer look arrogant or childish.

Finally, a powerful, but risky technique that should be reserve for very bad situations, is to simply pull over the blackboard and write the question out. It is a visual way of pointing out to the jury that you are simply trying to get a straight forward answer to a simple question. But once again, that kind of professional exasperation must be saved for the truly exasperating witness.

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. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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