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Witness Control, Part One: Controlling Explanations

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wHabas_Tinaritten 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?

A:          Yes.

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?

A:         Yes.

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.