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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. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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