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.
A version of this article was originally written by NITA faculty member Christina Habas for Law Week Colorado and is reposted here with their permission.
We all know that there are potential jurors on any venire whose past experience or biases may prevent them from accepting our client’s claims. Many lawyers are reluctant to explore those sorts of issues, because they believe discussion of information that is not helpful to their case might position the remaining jurors. The difficulty with this view is that it potentially leaves people on a jury panel who are not open to hearing out arguments. There is much danger there.
I suggest that neither jury selection, nor the trial itself, ever changes a juror’s mind, nor does jury selection create issues where issues do not previously exist. Instead, the function of jury selection is actually to “de-select” jurors who hold views that are destructive to our client’s version of events and, if possible, to remove those jurors from the panel who hears the case.
By way of example, in a recent case tried by our firm, our client’s decedent was operating his automobile at night on Highway E-470, returning home from Denver International Airport, when he rear-ended a street sweeper that had been traveling in the left lane of E-470 over the bridge at Parker at a speed of approximately three to five miles per hour. There was also evidence the decedent was using his cell phone at or near the time of the collision and a suggestion that he was doing more than simply making a telephone call at the time. Thus, jurors who held the opinion that all drivers who rear-end another vehicle are 100 percent liable for the collision, as well as jurors who believe that all drivers who are involved in an accident when using a cell phone are liable, had to be identified, and if possible, removed from the jury panel.
The questioning of the venire to obtain these attitudes is counterintuitive. You must ask the question in its purest form to see which jurors hold the most obviously destructive opinions. When we are in “trial mode,” we maybe reluctant to raise potentially destructive issues to our case. However, in voir dire, we must ask those questions in order to properly identify those with attitudes that will make a juror reluctant to find in our favor. Do not dance around you main issues: embrace them.
After we assured jurors that we wanted them to tell us things even if they believed we did not want to hear them and that we were not trying to change their minds, we then asked:
- Are there any jurors who believe that if a driver of a vehicle rear-ends another vehicle, no matter what the circumstances, the rear-ending driver is always 100 percent responsible for any accident?
- Are there any jurors who believe that if a driver of a vehicle is using a cell phone in any manner and a collision occurs, the driver using the cell phone is always 100 percent responsible for any accident?
Not surprisingly, we got a fair number of jurors who agreed with one or both of those questions. Asking the question in a very dimple, direct, and absolute way provides you with a better chance of establishing grounds for a challenge for cause under Colorado Rules of Civil Procedure 47.
Even more, however, it allows you to ask jurors whether there are limits on their beliefs or attitudes—whether there are circumstances where they might not believe that driver to be 100 percent responsible, thus giving you an opportunity to de-select in a more meaningful way. At the same time, because we did not argue the point with any juror who raised their hand, the jurors accepted our promise to them that we were not trying to change their minds but instead actually wanted to hear what they thought—something that many jurors do not believe lawyers are interested in doing.
Do not worry about poisoning a jury panel. Instead, look for opportunities to discover your enemies, and to de-select them.
This post was written by guest blogger Christina Habas.
Arbitration and the art of witness examination: If you don’t know the witness exam and oratory/argument skills, you won’t have the alacrity to use them on a moment’s notice when the chemistry of the arbitration proceeding calls for it. If you learn them as trial skills, you can create a balance by incorporating them suitably to the flexible arbitration process.
An arbitration proceeding is no less a trial than a jury trial, despite the fact that no jurors are present to act as your audience. Your audience must clearly understand the story of your case, which is presented mostly through witness examination. That “story” will vary as to each witness, and their relative connection to the facts of your case. Your organization of that information will have a direct impact on the arbitrator(s) reaching their own conclusions about the importance of the witness’ testimony. Setting up the witness’ credibility to testify as to certain facts, illustrating their personal knowledge of those facts, and communicating the entire picture of information available to that witness (good and bad) in an understandable and memorable way requires a lawyer to utilize witness examination skills.
An arbitration will sometimes take on a life of its own. The arbitrator(s) often have sophisticated understanding of the legal issues involved in a case, and may wish to intervene in the presentation of your case. This requires the lawyer to exercise effective advocacy skills in listening to the issues raised by the arbitrator(s) questions, thinking about how best to address those issues, and asking sufficiently directed questions that are designed to provide the arbitrator(s) with the information needed to find for your client. A lawyer must be able to change their presentation to address what the arbitrator(s) believe are the core issues of the arbitration.
As your case is presented at arbitration, your ability to weave those facts and stories into your final argument that will motivate the arbitrator(s) to exercise their power on your behalf requires the lawyer to understand how decisions are made. The lawyer’s ability to clearly identify what it is that is being requested, and allow the arbitrator(s) to persuade themselves based upon the story of the case told through witnesses, is a critical skill. Although the terminology used by the lawyer during argument may differ somewhat from presentation to an audience of jurors, and the arbitrator(s)’ knowledge of the relevant law may be more refined than that of a jury, the art of presenting facts in a compelling manner that allows the arbitrator(s) to persuade themselves is a necessary skill for any lawyer contemplating arbitration.
Previous posts in this series:
- Part 1 – Can ADR practitioners excel without honing their trial skills?
- Part 2 – Mediation and endless curiosity
- Part 3 – Negotiation and the insecurities over losing control
Upcoming posts in this series:
- Part 5 – ADR in studio71
You can join in our LinkedIn discussion on the ADR topic here!