The Obstinate Witness
Each trial lawyer encounters them – the witness who refuses to agree with even the obvious level. Present them a photograph of their automobile, and so they declare they can not acknowledge it. Confront them with a previous assertion, and so they insist it’s inaccurate.
It is a technique to frustrate you, to dam you, and to management the narrative. How do jurors react? They see somebody making an attempt to cover one thing. Use this conduct to your benefit, displaying the witness lacks credibility.
Understanding the Obstinate Witness
The obstinate witness disputes actuality, argues each query, avoids “sure” solutions, makes use of speeches, and controls the trade. They behave this manner out of concern of conceding even minor factors, they’ve been coached this manner, or that’s their character.
What they misunderstand, although, is that jurors dislike evasiveness. They need equity and reality. If a witness denies the solar is out, the jury sees they’re mendacity. It’s our job to sofa these refusals as dishonesty with out bullying or showing petty.
Questioning the Obstinate Witness
An obstinate witness prevails if you end up unprepared. If you happen to can’t impeach or pin them down, they escape. Know the information, statements, deposition transcripts, and the info – something to confront them after they deny an apparent level or reality.
Begin your questioning with one thing they can not disagree with, in order that in the event that they do, they appear silly. “The accident occurred on X.” “The accident occurred at Y.”
Tie your inquiries to tangible anchors. Ask questions supported by photographs, diagrams, maps, movies, calendars, medical information, receipts, e-mails, and correspondence. These power the witness to behave absurdly in the event that they deny your questions.
Script your questions so that you begin with simple truths, and ask as a lot of these as attainable, earlier than shifting to disputed info. In the event that they battle you on the undisputed questions, they arrive throughout as liars after they battle you on gadgets which might be really in dispute.
There are totally different strategies to query the obstinate witness:
The Step-Ladder method. Begin with trivial, simple truths. Transfer to barely extra significant factors. Lastly, method the contested challenge. Refusals alongside the best way present dishonesty earlier than you even attain the center of the case.
The Boxing-In method. Ask questions so every reply narrows choices. When the witness denies the query, repeat the identical query verbatim. Proceed this course of till jurors see the dodging.
Repeat and Keep Quiet method. Repeat the identical quick questions phrase for phrase. After refusal, pause. The silence highlights the evasion.
One Reality method. Cut back every query to just one reality. No adverbs, adjectives, or conclusions. Simply nouns and verbs. Make them admit or deny that single level.
Questioning an obstinate witness takes on a rhythm. Use quick, crisp, repetitive questions. No editorializing. Let refusals accumulate within the jurors’ minds.
Body questions that jurors can reply themselves. They change into members. When the witness refuses, jurors know who’s unsuitable.
Loop their phrases. Use their denial to create the following query. “You deny this can be a cease signal?” “Sure.” “So, you might be testifying that cease indicators don’t exist?”
Use goal proof. Use a photograph, for instance, to ask questions that the picture solutions. “It is a {photograph}?” “Of your automobile?” “It reveals the rear bumper?” “The bumper just isn’t crushed?” “The bumper just isn’t dented?” “The taillights are intact?” In the event that they deny any of those questions, the jury sees the absurdity.
Dealing with narratives and arguments. When the witness is pontificating, interrupt gently however firmly. “That isn’t my query.” Repeat the query precisely. Their evasiveness won’t go unnoticed. If want be, search judicial intervention.
Cadence. Develop a cadence with quick, declarative statements that invite “sure” solutions.
Guidelines for cross-examination of the obstinate witness:
• Evaluate all prior testimony.
• Establish 20 apparent entry questions to begin numerous traces of questioning.
• Script ladders of questions for every of those traces of questioning.
• Put together displays to lock within the witness.
• Begin with the obvious questions.
• Use rhythm and cadence to your benefit.
• Use quick questions which might be declarative statements.
• Repeat verbatim when the witness denies an apparent query that deserves an affirmative response.
• Strategically use silence.
• Impeach solely when vital.
The obstinate witness could also be a blessing in disguise. A witness solely has their credibility and likability. The obstinate witness comes throughout neither as likable nor plausible. If you happen to can exploit their obstinacy, you’ve left their testimony in tatters.
Frank Ramos is a accomplice at Goldberg Segalla in Miami, the place he practices business litigation, merchandise, and catastrophic private harm. You possibly can observe him on LinkedIn.
The submit Let The Liar Lie: Embracing The Obstinate Witness appeared first on Above the Law.
