University of Washington School of Law

UW Law Digital Commons

2010

Mastering Foolproof Witness Control on Cross-

Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles

Recommended Citation
Maureen A. Howard, Mastering Foolproof Witness Control on Cross-Examination, Oct. 2010 De Novo 9 (2010),
https://digitalcommons.law.uw.edu/faculty-articles/521

This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in
Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected].
 Off the Record

Mastering Foolproof Witness Control

I
n the wonderfully entertaining and the maxim “ask only questions you know rors come to the subjective conclusion on
instructive video, The Ten Command- the answer to” is “source the answer to each their own.
ments of Cross-Examination,1 the late question.” This means that for each ques-
Often, lawyers find
Irving Younger offered this appraisal tion, a lawyer should not only know the
of lawyers’ ability to conduct cross-exam: fact-based answer in advance, she should themselves in trouble
“Most lawyers do it badly all the time, no know where to quickly access the evidence on cross-examination,
lawyer does it well all the time, and no to prove up that fact if needed. In most
sparring with an out-of-
lawyer in the early stages of his career does cases, this will be a prior inconsistent state-
it well at all.” Happily, we’ve come a long ment, such as a deposition. Do not rely on control witness. There
way since Younger’s grim 1975 assess- your memory in this circumstance. Rather, is, however, a simple
ment, due to the instruction of maestros annotate the source of each answer right
system for maintaining
like Younger, Terrence McCarthy (Mc- next to the question. It is frustrating for
Carthy on Cross-Examination), and Larry jurors (and the judge) to wait for a lawyer witness control on
Pozner and Roger Dodd (Cross-Examina- to search for impeachment evidence. And cross-exam.
tion: Science and Techniques). All too often, when the adrenaline is pumping and a wit-
however, lawyers still find themselves in ness stubbornly refuses to confirm that a One New Fact at a Time. Another
trouble on cross-examination, sparring straightforward fact is true, it can be dif- technique to maximize witness control on
with an out-of-control witness. There is, ficult for a lawyer to maintain composure cross-exam is to include only one new fact
however, a simple system for maintaining and put a finger on a fact in a deposition per question. A question may contain mul-
witness control on cross-exam, and there based on memory alone. tiple facts, but only one of them should be
are some easy techniques for regaining Just the Facts. A foolproof cross- new. Otherwise, if the witness rejects the
control if things go awry. exam is constructed of facts, because a wit- facts as presented, the lawyer is left unsure
A lawyer has lost control of a cross- ness can quibble with anything subjective, where the fight is. Which fact, or facts, is
examination when she engages in an ad such as conclusions, opinions, or inferences. the witness disputing? For example, sup-
hoc dialogue with the witness. That’s be- Therefore, a tight cross-exam does not pose the question is, “You were walking
cause, despite the question-answer format, include any comparators or adjectives, be- down Third Avenue in Seattle at noon on
cross-exam is not a conversation. A trial cause they invite dialogue. For example, in August 14 when you saw three men run
lawyer who finds herself embroiled in an a trial for assault: out of the Bank of America?” If the wit-
impromptu discussion with a witness on ness responds, “No,” the lawyer is forced
cross-exam (or worse, an argument) has lost Q: There were a lot of people present when to retreat and review each fact one by one
control of the witness and the examination. the fight broke out? to identify which one is disputed. This
The key to avoiding this loss of control is A: Nah, I wouldn’t say that. method is awkward and time-consuming,
preparation, preparation, preparation! Q: Well, this was at Safeco Field? and it can damage the lawyer’s credibility
Get the Facts Before Trial. Once A: Yes. with the jury.
trial begins, a lawyer must accept the fact Q: During a Mariners baseball game? Techniques to Regain Control.
that the time for discovery has come and A: Yes. Even lawyers who craft short, simple, sin-
gone. A good cross-examiner will have Q: During the middle of the fourth inning? gle-fact, leading questions may sometimes
mastered the facts of the case before trial A: Yes. find themselves facing a witness who refus-
and constructed a cross-examination based Q: And the fight broke out on the pitcher’s es to cooperate. In that case, there are tech-
exclusively on those facts. No matter how mound? niques to expose such a witness as evasive
desperately a lawyer is itching to learn A: Yes. and uncooperative without injuring your
the answer to a newly conceived question Q: So, there were a lot of people present? credibility with the jury.
during trial, she will resist the urge if she A: Not really. Safeco Field holds about • Do Not Interrupt the Witness. If the
wants to maximize witness control. The 50,000 fans, but it was raining that day and witness refuses to give a straight answer
best cross-examiners will tell you they ask the Ms were playing the Texas Rangers — to your clean, short, one-new-fact ques-
questions only when they already know so there were only about 6,000 people there. tion, do not become agitated and declare
the answers. This strategy maximizes pre- war. Unless the witness is damaging your
dictability and control on cross-exam and As the above illustrates, “shortcut” ad- case, such as starting to talk about a matter
allows for quick impeachment if the wit- jectives or conclusions are often anything previously ruled inadmissible (or one you’d
ness fails to agree on any fact. but shortcuts. A more reliable route is to like to have the judge rule inadmissible),
Source Every Fact. A corollary to rely only on facts, sequencing them so ju- do not interrupt him. You will appear rude
9
and seem like you’re trying to hide the ball witness gives a substantively comparable • Beware the “Nonresponsive” Objection.
from the jury. If the witness refuses to give answer, however, do not fight it. Instead, It is the prerogative of the examining attor-
a straight answer to a simple fact-based use the “Okay” technique: ney to object when a witness is nonrespon-
question, let him blather on. The jury will sive. The danger is that the objection may
see him for the truth-dodging weasel he is. Q: The traffic was heavy? well highlight the nonresponsive testimony
• The Hand Stop. Although you shouldn’t A: Well, there were a lot of cars. for the jury. As a general proposition, the
interrupt a witness, you can sometimes si- Q: Okay, there were a lot of cars. “nonresponsive” objection is a tripartite en-
lently direct him to stop speaking by put- deavor: the lawyer 1) objects to the testimo-
ting your hand up as if to say, “Stop.” It Likewise, if the witness gives a better ny as “nonresponsive”; 2) moves to strike;
is amazing how well this technique works, (but different than you expected) answer, and 3) asks the judge to give an instruction
even with arrogant, caustic witnesses. Per- do not fight it! Instead, use the “That’s to the jury to disregard the testimony. Do-
haps this is because the nonverbal com- Right” technique: ing this can have the unintended conse-
mand is rooted in childhood and hard- quence of having the testimony repeated
wired into us. The hand gesture should Q: Sir, you had two insurance policies on multiple times in front of the jury, which is
not be flamboyant, however. The goal is to your wife’s life at the time of her death? counterproductive. The better road is often
subtly cue the witness to stop, not to draw A: No, I had three. to let the nonresponsive answer slide.
the jury’s attention to you by parodying a Q: That’s right: you had three insurance • Do Not Go to the Judge for Help. If
police officer directing traffic. The beauty policies on your wife’s life. you have crafted clean, short, one-new-fact
of the subtle hand stop is that the lawyer questions, you will not need to seek help
regains control of the witness without ap- • The “Reverse/Repeat.” If a witness will from the bench. If you use the “repeat the
pearing rude. not answer a simple, one-fact question after question three times” technique, it is un-
• Repeat Your Question. If the witness multiple attempts, try flipping the question likely the judge will need to jump in and
blathers on nonresponsively, just repeat 180 degrees and putting the polar opposite instruct the witness that he needs to answer
your simple question. Doing this three fact to him. For example: the question. You, as the lawyer, do not ask
times underscores for the jury the witness’s the judge to do this — it signals your loss of
refusal to cooperate. It can also be effective Q: There were other people at the office control to everyone in the courtroom.
to write the question down for the witness party aside from you and Mr. Smith? • Do Not Spank the Witness Until 10
to drive home to the jury the simplicity of A: Well, it was really late and pretty much Minutes After the Judge and Jury Want
the question and the inherent unfairness of everyone had left early... You To. Although cross-exam need not be
his refusal to answer the question. Q: There were other people at the office “cross,” there are times when it is appropri-
• “Okay” and “That’s Right.” Another party besides you and Mr. Smith? ate to deliver some attitude to the witness.
reason foolproof cross-exam includes only A: Well, all the people from my depart- Just make sure the judge and jurors are
simple leading questions the lawyer knows ment had left well before 7:00... grateful when you do this. Remember, the
the answer to (and can readily impeach Q: So, you and Mr. Smith were the only goal on cross-exam is to discredit the wit-
with pre-sourced answers) is because a ones left at the office party? ness, not yourself. Having an attitude with
question put to a witness on cross-exam a witness before it feels appropriate to the
but not admitted is often viewed by the It is amazing how a witness who will jurors conveys that you are motivated by
jury not as yet unproven — but rather that stubbornly refuse to agree with something emotion instead of logic. This undermines
the opposite is proved! If the witness is re- will quickly reject the 180-degree opposite your credibility, which is your most valuable
fuses to acquiesce, you must impeach. If the proposition. asset as a trial lawyer. ◊

Notes
Trial Advocacy Program CLE
1.Younger’s Commandments are: 1) be brief;
When: Saturday and Sunday, October 23–24 2) short questions, plain words; 3) ask only
Where: The New WSBA-CLE Conference Center, Seattle leading questions; 4) never ask a question
unless you know the answer; 5) listen to the
Mock Trial – Saturday, November 13, Seattle Municipal Courthouse
answer; 6) do not quarrel with the witness;
$250 for full participation and 19 CLE credits (pending) 7) do not repeat the direct exam; 8) do not
$150 for CLE only – 12 CLE credits (pending) allow the witness to explain; 9) do not ask
the one-question-too-many; and 10) stop
The annual WYLD Trial Advocacy Program offers intensive training by when you have accomplished your goals.
litigation experts and a true-to-life mock trial experience. Previous par-
ticipants commented that the program was “completely engaging and “Off the Record” is a regular column on various
thought-provoking. Entertaining, real-world skill development.”
aspects of trial practice by Professor Maureen
To register for the full TAP program, visit www.mywsba.org/Default.aspx?t Howard, director of trial advocacy at the Uni-
abid=90&action=MTGProductDetails&args=5762. To register for the CLE versity of Washington School of Law. She can
only, visit www.mywsba.org/Default.aspx?tabid=90&action=MTGProductD be contacted at [email protected].
etails&args=5761. Visit her webpage at www.law.washington.
edu/Directory/Profile.aspx?ID=110.

10