So you’re conducting the cross-examination, and the witness is fighting like a three hundred pound marlin at the end of your fishing line. And they’re not fighting by legitimately drawing distinctions or by using their own words, they’re fighting with obvious evasion and misdirection. It’s frustrating. You feel like slipping into a scene from “A Few Good Men” and shouting, “I want the TRUTH!!” But instead, you pause, you take a deep breath, and you politely continue.
Recently, a reader of this blog, a third-year law student looking to go into litigation, asked me how the attorney should handle the situation when the witness is fighting her at every step. I thought it was a good question, and as I composed a quick response, I had a thought that is prized by anyone who comes up with two blog-post topics a week: “I should write a post about this!” I will often focus on advice for the witness, but it can be just as challenging, or more so, for the examining attorney. My short response to the reader was that the examining attorney needs to A., show patience, and B., focus on what the jury needs to know; and sometimes with an obstinate witness, fully sticking with “B” will require a little less of “A.” For this post, I’ll expand on that answer.
How you see yourself in the examination should be as the jury’s voice, and no more. The priorities of the advocate’s mind can sometimes create the feeling that it’s about you winning in front of a group of spectators, and not about the jurors understanding and coming to the right conclusion. Keeping a jury-centered focus means implicitly, and sometimes explicitly, referencing the questions, concerns, and comprehension of the fact-finders. “I believe that this jury would like to understand…” is a good thing to say in your head, or sometimes out loud.
Level One: Patient Persistence
Your first recourse when a witness starts to get evasive or difficult is to keep your cool but stay the course. In your own response, the jury should see only two things: patience and persistence. Clarify, and ask again. note the difference between what you’re asking and what the witness is answering. And keep at it.
Level Two: Call It Out
If patient persistence doesn’t work out, sometimes you need to get a bit more explicit about the problem. Hauling out the deposition and impeaching based on any inconsistency is one way of calling it out. Another way — and it can get you an objection in some courtrooms — is to call out the evasion itself:
Mr. Smith, it seems like this is a question you don’t want to answer. Can I ask you why?
Is there any way I could rephrase this so you’re able to answer it?
Should we just note that you’re not able to answer this one and move on?
Level Three: Get Help
If worse comes to worse, remember that there is a judge in the room, and generally, that judge is going to be revered by the jury. Ideally, you want to get the answers on your own, but if that doesn’t work, there’s always the step of moving to strike the answer as non-responsive and asking that the witness be directed to answer. If you have great rapport with your judge, sometimes all it takes after an egregiously evasive answer is turning to the judge with raised eyebrows, and simply saying, “Your honor?” Asking the judge to step in is a very effective way of signaling to the jury that this witness is trying not to be open and candid. And juries hate that.
Your Red Lines
As an attorney, though, you need to worry about your own credibility, and not just the credibility of the witness. On that score, there are a couple of red lines you should never cross.
Never Lose Your Cool
Don’t get upset, and never let them see you sweat. You may really want that admission, but remember that their evasion is another way of winning. Let the witness flail while you just keep projecting a firm confidence.
Never Make It Personal
It is always about the evidence and never about the person. So just as you should never feel insulted, make sure you could never come across as insulting. Don’t talk down to the witness, and don’t let your words, facial expressions, or body language betray a lack of respect. Remember, even in the case of a difficult witness, the person make be likable on some level, and in in any case, your jurors will generally have more in common with the witness than they have in common with you.