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How to deal with the witness who, on cross-examination, loses the ability to answer questions

One of the things I am enjoying about mentoring newly-licensed attorneys is the opportunity to share little tips on how to deal with common litigation problems that seem to frustrate many attorneys.  This is a tip we discussed today.

A common problem in cross-examination is the witness who was so able to answer questions directly on direct examination but loses that ability on cross-examination: yes-no questions prefaced by long-winded (and self-serving) explanations, with the actual yes-no answer being hidden or lost within the prolix response; fact-seeking questions in which numerous information is revealed but not the information being sought; explanation questions that explain something else.

How does one deal with such witnesses, who treat cross-examination like a tarpon treats a fishing line?  Many attorneys simply roll their eyes in frustration.  However, there’s an easy cross-examination script that makes such witnesses heel.   First establish the following points with the witness:

You understand the questions I am asking you?

On direct examination you could answer yes-no questions “yes” or “no” without a lengthy explanation?

On direct examination you could answer questions seeking facts by simply providing the requested facts?

On direct examination you could answer questions seeking explanations by simply explaining what the question sought?

On cross-examination, you seem to be having trouble answering yes-no questions “yes” or “no” without a lengthy explanation?

On cross-examination, you seem to be having trouble answering questions seeking facts by simply providing the requested facts?

On cross-examination, you seem to be having trouble answering questions seeking explanations by simply explaining what the question sought?

Yet you acknowledge you are understanding my questions?

Once you’ve established all these points, you’re ready to ask the final question.  It’s a question you don’t need to know the answer to, and really can’t anticipate the answer to.  However, the answer doesn’t matter if you established the above facts because there is no way for the witness to answer this question without looking bad.

So what is the reason you are having these difficulties answering questions on cross-examination when you didn’t have these difficulties on direct examination?

Typically, from that point forward, most remaining cross-examination questions get answered rather than evaded.  Even if the witness remains evasive, I’ve established that this witness is aware I am aware of, and have established, his or her evasiveness while that witness continues to remain evasive.  It’s then rather difficult for the court or factfinder to find such a witness credible.

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