Impeachment. It’s one of the most powerful things an attorney can do in the courtroom, and yet so few lawyers do it. Perhaps it’s due to trepidation about the mechanics of impeachment. Or maybe lawyers are worried that the time it takes to impeach a witness will create unwanted delay in a courtroom full of impatient jurors. Maybe lawyers shy away from it because of this familiar scene: A lawyer begins to impeach, and the first thing opposing counsel says is that they can’t find the transcript. Then they can’t find the proper page. Then they need more time to read the excerpt. Then they say, “Your Honor, this isn’t proper impeachment!” even if the previous testimony directly contradicts what the witness just said on the stand. By the time the witness is actually confronted with the prior testimony, the jury may have forgotten the question. Whatever the reason, I’ve noticed that many lawyers—even very good lawyers—just don’t seize the opportunity to impeach a witness even when they have the ammunition to do so.
Here’s my advice: Impeach the witness on matters that are not trivial when you know you can.
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