While witness control is important when cross-examining a lay witness, it is essential when cross-examining an expert witness. One of the best methods to control a witness on cross is to pose short, “one fact at a time” questions designed to slowly but surely make your point for summation. While this is easier said than done, there is a straightforward method to accomplishing this goal. To reach it, however, a firm understanding of different questioning techniques must be understood.
There are three basic methods to questioning a witness: The first is to ask open-ended questions. The second is to ask what most lawyers refer to as leading questions. The third is to tell the witness the answers and merely seek confirmation from the witness. No doubt exists that the third method will, if done properly, put the attorney in the position of maintaining maximum control of the witness while, at the same time, educating the jury.
FORM OF QUESTION
By asking open-ended question on cross, the attorney is relinquishing control of the witness. Such questioning turns the courtroom over to the witness to answer the question any way he sees fit. Questions that begin with the following words call for a narrative response and are clearly open ended: Who, What, When, Where, How, Describe, Explain, Tell us, and Why. These are the questions most often used on direct examination. Because these questions allow the witness to narrate, it is the witness who becomes the center of attention. This, in turn, allows the witness to develop a rapport with the jury, establish his credibility, and teach and explain his position. While there are times when “low-risk,” open-ended questions might be an effective way to score points on cross, for the most part, open-ended questions are, simply put, dangerous.
Consider the following example to illustrate this point. Imagine the scenario in which a patient who had been hospitalized for one week had his temperature taken only one time during the hospital stay. On cross, the attorney for the plaintiff believes he can score by asking a question designed to elicit this fact by using the open-ended form:
Q: How many times did you take the patient’s temperature during his hospital stay?
A: We took the patient’s temperature as many times as was necessary. Since the patient was afebrile when we took his temperature, there was no reason to take it again. Our goal is not to perform needless tests on a patient. It is to follow up on those issues that matter.
In this example, the attorney lost control of the witness. Because the attorney posed an open-ended question, he allowed the witness to offer far more in his answer than the attorney sought.
While the attorney might seek help from the court by moving to strike the nonresponsive part of the answer, he may or may not win. Either way, unfortunately, the jury has heard the response and even if counsel is successful in his application to the court, it is difficult to “unring” the bell.
To avoid the potential for long-winded answers, many attorneys believe it best to ask leading questions on cross-examination. A leading question is one which suggests the answer or severely limits the universe of potential answers. By changing the form of the question, the attorney instantly enhances his ability to control the witness. Questions that begin with the following words hurt the potential for a narrative response: Did, Were, Have, Had, Could, Should, Are, and So. Indeed, the opposites of these questions also serve the same goal: Didn’t, Weren’t, Haven’t, Couldn’t, etc. If the witness is responsive, this form will work. The witness may give the attorney the desired “yes” or “no” response. If, however, the attorney is dealing with a savvy expert, the expert still may find wiggle room to avoid answering the question. Take the same scenario as above:
Q: Did you only take the patient’s temperature one time?
A: We took the patient’s temperature as often as was necessary.
Once again, the attorney could make an application to the court to strike the non-responsive part (in this case, the whole answer); however, there are no guarantees with such an application.
The third approach to controlling and questioning the witness is to more forcefully ask a leading question. It is, in effect, pure leading. The method is to tell the witness the answer and at the same time tell the jury the answer. Here, all the attorney seeks is confirmation of the statement he made to the witness:
Q: You took the patient’s temperature one time, correct?
Q: You never took his temperature again, true?
Q: You never instructed anyone to take his temperature again, am I right?
The beauty of this type of questioning is that it limits the witness’s ability to wiggle out of
the desired answer. Of course, there are no guarantees that a witness (especially a professional witness) will not volunteer a longer answer or try and be “cute” by responding “Is that a question?” There are methods to deal with such a witness.
One of the easiest ways to deal with a “runaway” witness who refuses to comply with the desired one-word answer (“yes” or “no”) is to repeat the question and change the tone of your voice:
Q: You never took his temperature again, true?
A: It wasn’t necessary.
Q: My question is specific. [In a louder, firmer tone.] You NEVER took his temperature again, true?
This technique serves two goals: First, it shows the jury you are in control and that you do not have to rely on the whim of the court—by making an application to strike—which may or may not work. Second, it shows the witness that you, as the questioner, mean business and that you will not tolerate anything but the desired answer.
Another technique to force the witness to answer the question in the desired manner is to use “reverse repetition.” In this technique, the attorney merely reverses the question, seeking the exact same answer to the one originally posed:
Q: You never took his temperature again, true?
A: It wasn’t necessary.
Q: My question is slightly different than the one you answered. You NEVER took his temperature again, true?
A: I said it wasn’t necessary.
Now, reverse the questioning and change the tone with which the question is asked:
Q: Are you telling this jury right now that you took his temperature MORE THAN
Q: You NEVER took his temperature again, true?
Quite often, a true “runaway” witness will volunteer far more than the question ever called for. For example, you ask the witness for the time and the witness tells you how the watch was made. A straightforward solution to this problem is to take a lesson from the old school-crossing guard who puts her hand up to stop traffic. For some reason, a hand in the air mimicking a school-crossing guard elicits a Pavlovian response. Everything stops. By taking advantage of this technique, as soon as the witness goes off-track, the attorney should immediately raise her hand signaling to the witness to stop talking. As soon as the witness stops talking, a firm fully leading question should be put to the witness.
Other techniques may, at times, be equally effective in controlling the witness. One way is to tell the witness as soon as he gives a non-responsive answer that “All I’m asking for is a ‘yes’ or ‘no’ response. Can you do that?” Another way is the “Let’s make a Deal Technique.” In this method, the attorney says directly to the witness, “I’ll tell you what. First you answer my questions, and then I’ll let you explain.” Needless to say, the problem with this method is that it eventually turns control over to the witness. However, if the followup questions are penetrating and effective, they may have the desired effect of making meaningless any supposed explanation.
In the event the witness insists on “running away” with every question asked of him, the attorney can make her point by simply asking the witness:
Q: Are you done yet? or
Q: Have you finished?
Q: Good, now we can get back to the facts. My question was, you never instructed anyone else to take his temperature again, true?
Another effective way to control the runaway witness is to remind that witness that his attorney will have another chance to question when you are finished but that for now he needs to answer the questions put to him. By being patient and reasonable, you will impart your message to the jury that the witness is anything but forthcoming. In this instance, your patience may well be rewarded in that the jury may despise the non-responsive runaway witness.
Ben Rubinowitz is on NITA’s Board of Directors as well as the program director for our upcoming National Session in Boulder this July. He is also the managing partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz.
Evan Torgan is a member of the firm Torgan & Cooper, P.C.
I bring you fresh greetings from our friends in Japan! Yesterday, I returned from NITA’s 2014 trip, where Mike Ginsberg, NITA’s Board Chairperson, and I taught a demonstration program on storytelling. Our schedule encompassed case analysis and storytelling, and direct and cross-examination.
NITA has visited Japan at the invitation of our exchange partner, PSIM, each year since at least 2008 to meet with law professors and to teach a NITA program. NITA shares a close friendship with our hosts and other legal education leaders of Japan. In this June 20 posting, I not only narrate NITA’s global impact in Japan, but also give a “shout out” to our marvelous hosts. Yoshiharu Matsuura Sensei, and Ikuo Sugawara Sensei, founded PSIM, and serve as professors of law at Nagoya University (Nagoya is the third largest city in Japan, lying just southwest of Tokyo). Akira Fujimoto Sensei, who succeeded Professor Suguwara as director of PSIM in 2014, is focused closely on experiential learning. Yoshiko Ohashi, PSIM’s very experienced staff professional, keeps all the trains (and planes) running on time, and exemplifies Japanese hospitality at its highest level. Our thanks go to each of you, and to your marvelous PSIM colleagues.
This year, our NITA-PSIM program involved twelve young lawyers in our intense trial training. A few of these fine advocates are recent graduates working in their apprenticeships for the bar requirements, and a number are already in practice. Working through interpreters, they with their dual familiarity with English, and we with embarrassingly no knowledge of Japanese, accomplished much in one day. They melded a courtesy and reserve appropriate to Japanese meetings with the kind of enthusiasm and explosive brilliance that rockets a NITA participant to new highs in advocacy. At the post-program party, several inquired about how to take a full program in the U.S. (we eagerly await their registration!), and all stayed to enjoy the team camaraderie that commands the room when the group completes a NITA program. We express our thanks for the hospitality of Ehime University’s Shikoku Law School, in Matsuyama.
The day before, I presented a lecture to PSIM member professors from around the country, gathered for this annual seminar. My topic was “Gaining Experience in Teaching Experientially: How Can Professors Connect Law School to Legal Practice?” Largely lecture-based to date, Japanese law schools are addressing issues similar to those seen by U.S. law schools – but the bar passage rate in Japan is about 25%. There seems not enough time to teach all of the substance needed for the bar, yet at the same time a need to move gradually from lectures as the norm to a more student-involving instructional method. Our two nation’s law school cultures are very distinct, reflecting our general cultures and practice. Yet we join our Japanese colleagues in asking, each for our own culture, what is the proper role of experiential education and how can we squeeze it into the course of study? My speech advocated that “applied” learning amid the doctrinal class syllabus allows the students to immediately apply a set of concepts known best by the theoretical professor. I argued that, as an adjunct professor, I have wanted to see the students “apply” the principles I teach right there, in class, while they are learning and while I still have them under my control. What better way could there be to guide them on what they have to absorb from the lectures and class discussions? What better way to convey the subtleties of the legal theory than when it becomes central to an issue that they must solve in a class “practice” lab? What better way to ask them to think in ways such that they come to own the legal principles, and to keep them interested in the area of practice? Applied learning in the doctrinal class, while the students still have the professor to guide them on substance of the law, is an optimal use of time.
The day after, leaders of the Japan Bar Federation were gracious in hosting me for a condensed and valuable discussion of their work in advancing advocacy. Thank you too, for your hospitality.
NITA’s global impact continues elsewhere this year. We will return to teach solicitor-advocates in Northern Ireland as a part of the Law Society’s support of court reform to allow such advocates to represent clients in cases of higher jurisdiction. We will return to Kenya to continue our multi-year Rule of Law program teaching prosecutors, defense lawyers, and judges. Kenyan faculty who teach alongside us have themselves taken the NITA program over the years. Other programs are in the works. NITA is exceedingly proud of our global impact, where we seek to help advance justice in ways that resound with the culture and maturity of the legal systems of selected countries.
And yes, spring in Japan is glorious, given the native Japanese cherry trees everywhere!
Thank you, and please come visit NITA! The National Program (at Boulder) starts on July 23 and is shaping up to be a large and exciting group! Alert your colleagues to enroll soon –
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
NITA Faculty James Gailey talks about Witness Control and Cross-Examination.
Written by guest blogger Judge McGahey
Have you ever tried to unkink a hose that’s been lying around in the yard all winter? Or tried to get through a big plate of spaghetti when the noodles are all twisted together? Or sorted through a huge box of family photographs that have been sitting in a basement shelf for years? Those are the kinds of images that went through my head when, after a conversation with a co-worker, I renewed my acquaintance with 1990’s Presumed Innocent. I didn’t remember how convoluted and complicated the plot was—and how much fun it was to try tounravel it.
Harrison Ford stars as Rusty Sabich, a prosecuting attorney. He is tasked with leading an investigation into the rape and murder of another prosecutor, Carolyn Polhemus, played by Greta Scacchi. Rusty has one problem, though: the married Rusty had had an affair with Carolyn, who’d dumped him after she decided that he couldn’t help her move ahead in her career. Rusty manipulates the investigation, hoping to keep his role quiet. But then another problem arises: Rusty’s boss (Brian Dennehey) loses an election and the new DA, aided by a cop who’s not Rusty’s friend, finds evidence that points to Rusty as the killer. Knowing he’s in a jam, Rusty hires Sandy Stern (Raul Julia), a leading criminal defense lawyer, to help him. Eventually, the case goes to trial, with an upright judge, some missing evidence, a twist in the forensic evidence, a little perjury, etc. After all of that, the murderer is revealed—but that’s just another kink in the hose.
Even with all of the switchbacks, plot twists, and “wait a minute” moments, this movie is a real treat. It will keep you guessing right until the very end—and the end may not be something that you like very much. The acting is first class, and Alan Pakula’s direction is top notch. In 2008, Presumed Innocent was picked as number 11 on the ABA’s list of the 25 Greatest Legal Movies, and that’s high praise indeed.
Scott Turow was a creative writing fellow at Stanford when he decided to go to law school. After graduating from Harvard, he joined the U.S. Attorney’s office in Chicago, prosecuting cases involving government corruption. He then returned to writing. In 1987, his book Presumed Innocent came out, and after that Turow continued to publish exciting, believable thrillers with legal settings. (Two others were turned into movies.) He continues to practice law, doing mostly pro bono work.
This is one that I’d sort of forgotten, but one I was glad to discover again.
written by NITA faculty member Christina Habas
Often, difficult witnesses are not being intentionally difficult. Instead, they are manifesting their discomfort with a lawyer’s question in a manner that makes them appear as though they are not under control. In those instances, a lawyer may re-establish control by listening carefully to the so-called uncontrolled response, and then front-end loading it into a follow-up question. Nearly every time, the witness will then willingly agree with the question, and control is re-established.
An example may be in order. Suppose the following interchange occurs during cross-examination of an expert witness (this time, an engineer on accident reconstruction):
Q: Mr. Smith, you did not personally see the tire tread marks, true?
A: By the time I was retained on the case, all of the tire marks had been obliterated due to normal traffic flow.
This question and answer may seem as though the witness is uncooperative, but instead the witness is carefully telegraphing that the response is “yes” but that there is a good reason for why he did not view the tire tread marks. The alert lawyer will carefully listen to the “explanation” given in the seemingly non-responsive answer, and then use it to re-craft their question:
Q: Because normal traffic patterns had obliterated the tire marks, you did not personally see them, true?
The lawyer has thus been able to obtain the response that the lawyer requires—that the witness did not personally see the tire marks—but also provide the witness with the comfort that the reason he did not see the tire marks has been placed before the fact finder.
Taken to a higher level of persuasion, however, the lawyer may neutralize the “explanation” language when the lawyer re-crafts the question:
Q: Regardless of the reason, you did not personally see the tire marks, true?
In both instances, the witness’s excuse has been taken away by the wording of the new question, but in the second example, the lawyer does not repeat the excuse. Instead, the lawyer simply recognizes that there is an explanation.
This control tactic works equally well, if not better, on non-expert witnesses. Those witnesses are less likely to take intentional steps to obfuscate the lawyer’s questions, and instead have likely been prepared to focus on providing honest responses. If you step back and listen carefully to a witness, you may find the tools you need to gain control in a very credible manner.