Question: When is your case at its most vulnerable?
Answer: It’s when your witnesses are interrogated by opposing counsel.
Here’s the scenario: Your witness is about to play a game he or she has probably never played, against someone who’s already mastered the game. It’s like sending a white belt to fight a black belt. What could possibly go right?
Making matters worse, witnesses have some idea of the dangers they face, but no idea how to protect themselves. For example, they realize opposing counsel might manipulate them somehow; fluster them; trap them with their own words; use their own words to “force” them to agree with something that’s not true, or that they don’t believe; trick them into saying something that damages their case; harm their reputations; make them look foolish; make them angry, or emotional. The list goes on, and it's all true.
Fact: No matter how good the facts of your case are, if any of these things happen to your witnesses, it could destroy your case.
If you’ve represented plaintiffs, how many times have you seen the value of the case diminish after the deposition or cross-examination of one of your witnesses? If you’ve represented defendants, how many times have you seen the risk (value) of the case increase after the deposition or cross-examination of one of your witnesses?
Regardless of how intelligent, skilled at communicating, charming, savvy, sophisticated, or likable a person is, these things don't automatically make someone a good witness.
Fact: In the hands of a skilled cross-examiner, anyone can be made to look foolish, arrogant, dishonest, condescending, rude, impatient, uninterested, annoyed (insert any other negative descriptor here). If these things happen to your witness, it could destroy your case.
How do these things happen to witnesses who are simply telling the truth?
Using strategies he or she has mastered, opposing counsel plays rhetorical and psychological games designed to put the witness into fight/flight/freeze mode. Attorneys have a variety of tools to make this happen. Sometimes the attorney uses emotional attacks (e.g., sarcasm, aggression, condescending tones, disrespect, kindness). Other times opposing counsel uses certain tactics (e.g., fast paced questions; mischaracterization of the facts; intentionally inaccurate interpretations of facts; taking facts out of context).
If witnesses get baited into playing the game the attorney is playing, mistakes in the content or the delivery of their testimony will be inevitable, and can be catastrophic.
Fact: Witnesses cannot beat attorneys at their own game. If they try they will lose the engagement and probably the case. So what is a witness to do?
Witnesses Need to Play a Different Game
In the table below, the first column illustrates the types of attacks a witness might encounter from opposing counsel, the second column represents expected and natural responses/reactions a witness would give if he or she were trying to play opposing counsel’s game, and finally the third column represents how a witness, playing a different game, should react or respond to each type of attack.
How are the Tables Turned?
When the questioning attorney gets the expected responses (column two), he or she is in control and the witness is at his or her mercy. This is when the witness starts making errors in the content and the delivery of the testimony, and damaging the case. On the other hand, when the witness responds with column three answers, the attorney's weapons are neutralized and the witness is in control. Now the attorney is frustrated, not the witness.
The tables can really be turned on opposing counsel when the witness adheres to the guidance in the final row in the table above. The following hypothetical cross-examination of a truck driver illustrates the point:
Q. There were multiple routes you could have taken to make your delivery, right?
Q. You choose to take the winding two-lane county road with residential homes on it, didn’t you?
Q. That’s where you and your 18-wheeler had the accident with Mr. Jones isn’t it?
Q. Mr. Jones died, didn’t he?
Q. There was a four-lane freeway you could have taken to get to your destination, right?
Q. The freeway wouldn’t have taken you out of the way, right?
A. That’s right.
Q. The four-lane freeway is wider than the two-lane county road isn’t it?
Q. There aren’t any homes on the freeway, are there?
A. Correct, there aren’t any homes on the freeway.
Q. Was there a policy that prevented you from taking the freeway?
Q. So, let me get this straight, the freeway is wider than the two-lane county road, it wasn’t out of your way, there were no homes on it, and you weren’t prohibited from taking it. Is that all true?
Q. And you chose to take the county road and you got into an accident on that road that killed Mr. Jones right?
Q. So you’d agree with me that you should have taken the freeway and by not doing so, you were reckless.
Stop! What should the driver say here? Most witnesses would give a column two answer such as “yes,” which would be game over for the defendant.
However, if the witness uses a column three answer such as, “I disagree,” the attorney is disadvantaged because now the he or she has only two bad options:
Option A: Move on.
The problem with this option is that it leaves the jury wondering a lot of things:
Why did the driver disagree?
Why didn’t the attorney ask the obvious follow up question, “why do you disagree?”
Is the lawyer afraid of what the witness might say?
Is the lawyer trying to keep information from us?
Option B: Ask the follow up question: “Why do you disagree?”
This option also carries risks:
It violates the cardinal rule: “Never ask a question you don’t already know the answer to.”
The open-ended question now allows the witness tell his or her side of the story.
The witness has just gained controls of is or her testimony.
There might be a very compelling reason the driver didn’t take the freeway.
The attorney can’t cut the witness off.
If you're the attorney, which option do you choose? It's a tough decision. Now who's in control and who is uncomfortable?
Learning how to handle questions from the opposing attorney is challenging for witnesses. It's not enough to give your witnesses "tips" for surviving cross-examination, they need a substantial amount of practice, because many of the right responses are counter-intuitive and will feel unnatural. There's a steep learning curve, but once witnesses get it, they can not only survive, but thrive under adverse questioning and become assets to the overall case.
For more ways to improve witness preparation, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135