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Witness Control, Part Four: An Excerpt from Effective Expert Testimony 3rd Edition

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Effective Expert Testimony 3d COVERThe following is an excerpt from NITA’s book Effective Expert Testimony, 3rd edition, written by David Malone and Paul J, Zwier. This book is available in print, ePub (iPad, Kobo, Nook, Sony) and Mobi (Kindle) formats.

Control Techniques for the “Run-On” Witness

  1. Repeat the Question
    Where a witness expands an answer to a tightly constructed, single fact, short question, one way to reassert control is to repeat the exact same question. The effect in the courtroom is really quite amazing because this technique points out to the jurors that the witness really is not playing fair—the question did not call for a further explanation. For example, if the cross-examiner asks, “Dr. Done, no epidemiological studies connect Bendectin to birth defects?”, and Dr. Done volunteers, “No, but that doesn’t matter because I have developed additional methodologies for analyzing the existing data, which I think are quite effective,” simply then say, “Dr. Done, no studies connect Bendectin to birth defects?” If the expert runs on again, the jurors will see his avoidance as advocacy and discount his credibility. And if Dr. Done runs on again, you can start to take the gloves off some more.
  2. Use a “Reverse Repeat”
    The reverse repeat sometimes surprises the witness into answering shortly and directly. Do not interrupt because it appears rude and suggests you are afraid of what Dr. Done has to say. Even though it is difficult, it is probably better to wait until the witness finishes answering, unless the answer is unfairly prejudicial and inadmissible. After the expert has finished, use a “reverse repeat”: “Wait, now, Dr. Done, are you saying that there are epidemiological studies that show a statistically significant correlation between Bendectin and birth defects?” Note also that the language of the reverse repeat is more specific and defined than the global terms used in the initial question. You have, in effect, raised the bar through this question. To defend his position now, the expert needs not just to identify “studies that connect” the original question, but “epidemiological studies” that “show a statistically significant correlation.” So in the initial global question, you try to exclude the universe of studies; in the reverse repeat question, you force the expert witness to identify a very specific type of study you know does not exist. The result of his denial in response to the reverse repeat is that the trier of fact assumes there are no “studies that connect,” just as you wanted to prove with your initial question. A further example may clarify this point of rhetorical art. The question is, “There are no good violinists from New Jersey,” and the witness waffles, “Well, I have certainly seen and heard a number of quite competent violinists as I traveled through New Jersey and other northeastern states.” You then ask the reverse repeat, “Doctor, are you saying that there are violinists born and trained in New Jersey who have won international acclaim for their musicianship and who have gone on to become first violinists with the symphony orchestra in any major American city?” You know there are no such people because you have added qualifications that your research revealed no one possesses, just as you knew there were no “statistically significant epidemiological studies.” If the reverse repeat is simply a repetition in a different syntax, it will receive the same unwanted answer; it must add qualifications, which seem fair and relevant to the jurors and, at the same time, force the witness to give the answer you want.
  3. Cross-Examine the Witness with Your Eyes
    Another technique to gain and maintain control is to pause and look the witness in the eye from “center stage” before starting the examination. This focuses the attention of the courtroom on the witness and impliedly says, “I dare you to look me in the eye and lie.” Second, if you take a position center stage and the witness must look you in the eye, then the witness cannot look at the jurors without appearing to be avoiding you. This may make the witness forget she is trying to persuade the jurors as she focuses instead on you, the source of the attack. Third, intense eye contact with the witness will give you more clues that the witness may not be going along with the question. If the witness starts to shake her head, to look at her lawyer, or to flip through her report, then you can see you are about to lose her. At that point, it is better to withdraw the question, so the witness will not have the chance to debate your point, than to plow ahead and face the possible harmful answer.
  4. Other Control Techniques
    If the witness still persists in volunteering, you might decide it is necessary to take on the witness even further. One technique is to raise your hand before you start the question, take a few steps toward the witness (where allowed), and preface your question by saying: “Now, ma’am, stay with me on this. Try to give me a ‘yes’ or ‘no’ here, OK? Will you do that?” (The “ma’am” works well for one of the authors, who can be an “aw, shucks” kind of guy, but does not work at all for the other. The “ma’am” may be too Jimmy Stewart for some attorneys who should instead just use “Dr. Smith.”) Then proceed right to your next question. Or counsel might try to play “Let’s Make a Deal”: “Dr. Smith, I’ll make a deal with you. First, you answer my question, and then you can explain whatever you want in addition.” Of course, if the witness accepts that invitation to insert additional information, be careful to avoid the “deer in the headlights” look. Do not position yourself in a way that forces you to look at her while she is answering. If you believe the jurors have already figured out that she has become an advocate and does not deserve your full attention, you might go back to your notes and flip through them, or look at your watch and show some impatience, or even, in the most extreme cases, turn half away from the witness, look at the clock, and then turn back when she is finished, saying, “Are you done? OK, now let’s get back to the facts.”
    Another control technique is to preface the question with a statement that describes the purpose of cross-examination. For example, you might say: “Now, Dr. Smith, you understand your lawyer has already had a chance to ask you all the questions he thought you needed to answer on direct, so would you just listen to my question and answer it,” or, “When I’m done, your lawyer can go back and ask you more questions, but now you need to listen to my question and try to answer me.”
  5. Do Not Go to the Judge Too Early, if at All
    Most experienced trial lawyers say they never ask the judge for help. They are concerned that if they ask, they may not get it, or they are afraid that asking for help shows they lost control of the witness; or they are afraid of looking whiny or like a crybaby (“Judge, make her answer my question”). If, however, you have been patient and reasonable, there may be no need to make the request because the judge will jump in and tell the witness to answer the question that has been asked. In any event, seek the court’s help infrequently and only when the answer you seek is necessary to allow you to continue with other portions of your cross.

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
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