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For trial lawyers, difficult witnesses are inevitable. But they’re not all the same. Some will have unhelpful versions of the facts. Others will be evasive by design or by nature. Some will even be hostile to you, your client or your case. While each type of difficult witness presents its own challenges, counsel can successfully cope with each by using simple techniques. The resulting deposition transcript will provide a solid foundation for dealing with witnesses at trial. First, adopt a calm, professional demeanor. It is generally inadvisable for counsel to become combative with witnesses. It is difficult to maintain intellectual control of the subject and direction of the deposition if one’s emotions are provoked and engaged. Most attorneys are unable to maintain objectivity when they become upset. Through anger or irritation with the witness, counsel may end up missing crucial details. Second, even if counsel does score some points in a vigorous debate with the witness, thanks to the hostile colloquy in which the statements were made, reading such a transcript before the jury will reflect badly on counsel, thereby losing any benefit gained. Third, a combative examiner often creates a hostile atmosphere that increases the adversity of the witness. By putting a witness on the defensive, counsel will likely stimulate answers that are less informative, less complete and, ultimately, less advantageous than a more subtle approach. Generally, no matter how hostile the witness, one completes a better deposition with a calm, professional demeanor and respectful questioning than with the contrary. On the other hand, there are some witnesses with whom a more aggressive approach may be effective, but this can be done without raising one’s voice or becoming angry. Simple, calm and focused questions in deposition can wreck greater havoc with an opponent’s case than a roomful of invective. • Prepare thoroughly.A poor deposition is more likely to result from lack of preparation than witness hostility. Counsel must have a plan for every deposition, including considering what the witness is likely to say and how best to approach such testimony. Counsel must review all available documents to be sure that wherever possible he or she can set up an impeachment of the witness for trial purposes. Thus, if the witness departs from a statement made to the police, counsel can develop the differences in deposition and set up an impeachment for trial. Similarly, where photographs show one version of things but the witness describes a contrary scene, exploring and confirming the deposition testimony will allow for impeachment by the photographs at trial. • Allow the difficult witness to undermine himself.When a hostile witness is irrational or incomprehensible, counsel can turn such adverse testimony to his or her advantage merely by ensuring that the witness’s version of events is fully described. If the testimony is implausible, then providing it is set in stone at deposition, its inherent unreliability will shine through at trial. It is even possible to “lead on” such a witness by encouraging him to add more and more implausible detail to his version of events. In this way, his testimony is made more extreme and even more unlikely to be believed. On the other hand, a “hostile” witness may be candid and truthful. One mistake often made by inexperienced attorneys is that they fail to thoroughly explore the testimony of such witnesses. A careful and rigorous exploration of the witness’s testimony may reveal limitations or favorable qualifications that can reduce the sting of the adverse facts. • Use indirect attack as an effective technique.If a witness testifies that your client was traveling at 60 miles per hour in a 30-mile-per-hour zone, it is unlikely that any cross-examination at deposition will result in a retraction. However, if you can explore how long the witness observed your client, from where the observations were made, whether he was wearing his glasses and the existence of other foundational weaknesses in his percipient observations, then you may get much more useful information to attack the testimony at trial. • Explore and expose all potential bias. Revelation of a bias not only undermines the power of the witness’s testimony but also places the witness’s hostility in damaging light. With every hostile witness, it is important to explore potential bias very carefully. Any possible relationship with or knowledge of a party or counsel must be considered. Previous contact between the witness and the party or counsel must be discussed. If there is any personal animosity or friction with one’s client or other reasons for bias, then that too must be explored. Sometimes bias can be shown because the witness objects to the fact that your client has brought a lawsuit or has hostility toward lawsuits. • Give the “I don’t know” witnesses all the rope they need. A witness who answers, “I do not know” or “I do not remember” is often a difficult witness to pin down, particularly where the use of such an explanation is limited. On the other hand, dishonest or unreliable witnesses may not limit themselves to just a few “I do not know” answers. More often, such witnesses use this type of answer extensively. Counsel must remember that such answers can be favorable for cross-examination purposes. Not only do they prevent witnesses from coming back with some kind of affirmative answers at trial, but the extent of the evasive responses can be used in court to undermine their credibility. Thus, if there are multiple “I do not know” or “I do not remember” answers in important areas, the repetition of a litany of these answers at trial can demonstrate that the witness is simply unreliable. Counsel may therefore wish to encourage such answers at deposition. • Search for the psychological key to the witness’s cooperation. If the examining attorney can develop a rapport with the hostile witness, the result can be a softening of the adverse testimony and even concessions and points of agreement. Counsel must therefore be alert to the psychology and demeanor of the witness as much as his substantive answers and look for the key to securing that witness’s cooperation. It has been suggested that counsel should mirror the conduct of a witness, as this can help encourage the witness to adopt a helpful attitude and helpful responses. If the witness leans forward and crosses his hands, so should counsel. • Handle professional witnesses with care. When dealing with a professional witness such as a police officer or a physician, the witness’s hostility must be handled with a delicate touch. The following additional points should be borne in mind: Probe the education, training and experience of the witness. The less adequate these foundational qualifications are, the less impressive the witness and the less forceful the testimony. Carefully examine and document both the facts identified and those overlooked by the witness. For example, were there any witnesses who were not interviewed by the police officer or any records not reviewed by the physician? If the witness has made mistakes in his report, a judgment call must be made as to whether to bring his attention to these mistakes to enable him to correct them or to simply leave them be to be used as ammunition at trial to suggest that the work reflected by the report was shoddy. Explore the limitations of the witness’s opinions without directly impugning his credibility or professionalism. For example, a police officer may agree that the vehicles had been moved before her arrival and that impact debris may have been moved or disturbed, making it difficult for her to objectively determine the point of impact. She may concede that her determination of fault is based exclusively on the testimony of a witness whom counsel can subsequently impeach. Most police officers focus on the driver whose fault they determine to be the cause of the accident. They frequently overlook other contributing factors such as the design of the highway, the road conditions, the absence of signage or poor lighting. If the officer is handled carefully, he or she may be prepared to concede that they are not an expert accident reconstructionist but merely a less-qualified witness. Handled this way the so-called “hostile” witness may not hurt your case and may even help it. • Finally, it is important to know when to stop questioning a witness. If counsel has obtained a concession, or at least an acceptable answer, from a hostile witness, it is usually best to move on and not give the witness an opportunity to revise the answer by arguing or probing further. If a witness gives you a point, don’t let him have an opportunity to take it back. Martin Blake is a partner with Baum & Blake in San Francisco and specializes in cases involving serious injury, wrongful death and professional negligence. He teaches trial skills at Hastings College of the Law and can be reached at 415-956-5544 or [email protected].

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