Every litigator has his or her own views on witness examination. These views are often grounded on commonly-cited truisms with which litigation attorneys have been familiar since law school. But many of these truisms are so commonly accepted that they are rarely examined in the context of modern, real-world litigation. How have they held up in our changing litigation landscape, outside the theoretical ivory tower?
Should they be followed literally, modified or adapted to fit modern practice and differing situations, or not relied on at all?
1. Ask Leading Questions on Cross, Not Direct
The first truism is actually required by many statutes and court rules (see, e.g., Cal. Evid. Code §§767(a)(1) and (a)(2)), in addition to describing a good practice generally. The philosophy underlying this truism is that the story told in testimony should come from the witness, not from an examining lawyer.
We get uneasy when a lawyer is making all the affirmative statements, and a friendly witness is in a passive and unsatisfying role on direct, merely voicing agreement with the lawyer. We fear that a meek witness, who can’t do more than say "yes" to affirmative assertions of fact, is not recounting the story accurately from his or her own memory, nor providing insight into the nuances of the story that we want to hear. Plus, we don’t get to observe or "know" the witness well for purposes of gauging his or her character or credibility.
By contrast, adverse witnesses, according to the conventional wisdom, will be uncooperative with the examining attorney, especially in terms of their willingness to tell a narrative supporting the examining attorney’s view of the facts. So we afford the questioner an extra weapon on cross, by allowing him to pose leading questions to the witness. The examining attorney thereby has one more arrow in the quiver with which to pinpoint the "hot" areas of the witness’ testimony, and forcefully guide the witness to testimony, or qualifications on testimony, favorable to the examining attorney’s position.
All sounds good, right?
Well, it sounds good but not complete. The principle that premises the leading question rule is so good that, in fact, more subtle applications of this principle work very well also, and deserve independent mention. A question can be asked in many different ways. And you, as the questioner, have significant control over the shape of the answer, if you’ve invested some advance energy and thought to phrasing. Between the polar opposites of leading questions and narrative questions, there are more subtle wording choices that can have a big impact on the answers.
Sometimes you want breadth in the answer, and sometimes you want a lean, precise response. And witnesses, in the view of the author, tend overall to want to give the questioner what he wants, if they can figure out what it is. A significant percentage of witnesses will pick up on, and respond differently to, a question worded as:
(Friendly Version:) "What types of factors did you consider in making your decision to do X?"
(Predictably triggers a narrative answer since it suggests that is what the questioner wants. The witness can take the ball and run with it.)
As compared to a question worded as:
(Standard Cross-X Version:) "You didn’t consider the factor of Y when you made your decision to do X, did you?"
Be aware, also, of a subtlety within the latter questioning style, above; even the cross-exam version of the question can have unforeseen intricacies. The second question quoted above sounds pretty absolute. But it is sometimes tempting for grandstanding lawyers to load up such a question even further with hyperbole that makes the above-quoted version seem like a softball:
(Loaded-Up Version:) "You didn’t give any consideration whatsoever, even for a moment, or for that matter even for a nano-second, to the factor of Y when you made your hasty decision to do X, did you?"
Well. Nice and dramatic, but be aware that the more pushy, absolutist wording you build into a question, the more the witness may see it as throwing down the gauntlet. The witness will then, predictably, try his or her hardest to come up with something to respond with, even if he would not have racked his brain quite so thoroughly to do so for the previous version of the question. With a narrow, precise but not over-the-top-absolutist question, it is much more likely to appear to the witness that you’ve done your homework, studied the deposition testimony, and through your own hard work, you’ve "got him" — the core answer to the question asked is "no," and the witness has to say so.
2. Don’t Ask a Question at Trial Unless You Know the Answer
Somewhere there is an ideal world, in which every fact relevant to litigants is known by both sides, every question that anyone could possibly think is relevant was asked and answered fully in the depositions, the witnesses had full and accurate recall at the time of the depositions, and all counsel are capable of retaining all of the above information sufficiently to spar spontaneously with a witness on the stand who has personal knowledge of the facts.
That world may exist, but it is not the world in which we try cases. All of the above-listed steps are undertaken in most cases, with varying degrees of completeness (assuming completeness can ever be attained in this context), and frankly varying with the size and nature of what is at stake in any particular case.
As such, it is never going to happen that the litigants’ counsel literally know the answers to all potential questions that may be asked at trial. But that’s OK — the truism is, at bottom, a catchy phrase designed to prompt the examining attorney into weighing the real need for the testimony before asking a question with an unknown answer.
The idea here is risk management. The second truism should be articulated by a little voice in your head every time you are about to ask the witness about a potentially risky topic or particular question, and it should trigger an exercise of your professional judgment to assess whether you really need this particular bit of testimony that you hope to elicit. But you should not literally refrain from asking a witness something as trivial as his or her middle initial (if relevant) just because you don’t know the answer from the depositions.
Incidentally, more than one veteran litigator who tried cases prior to the 1957 Civil Discovery Act mention nostalgically that, before the "discovery explosion": (1) it was common for litigators to try cases somewhat by the seat of their pants, constantly violating the present truism; and (2) it was a lot more fun that way. Food for thought on different perspectives.
3. Be Tirelessly Aggressive Toward the Opposing Party’s Witnesses
To the extent that this truism translates as "be a jerk to the other side," it can be addressed concisely:
No, don’t look like a jerk to the jury or your peers. What we are really talking about in this context is the element of having control of the situation. You do that (and make a favorable impression) if you are precise, professionally polite and not susceptible to being pushed around. Establish a rapport, gain control and show confidence, and you can be like a dog with a bone in the substance of the questioning itself.
Or, to add an editorial comment to the most common advice:
(Assuming you’re not a jerk), be yourself!
4. When you have the Testimony You Want, Sit Down
Our final truism is a variant on the familiar litigator adage, frequently laced with a profanity or two, in respect to closing arguments, motions and other live courtroom events — "When you’ve won, sit down."
Let’s distinguish two situations.
The first is the situation in which: (a) opposing counsel has an opportunity to question the witness after you conclude; and (b) the witness has a known explanation which will seriously qualify his or her answer to your questions. In that case, stopping when the story is only partially told can look disingenuous, as though you were trying to mislead the jury with half-truths, while the other side told them the whole story. Don’t engage in this practice. Remember that credibility, of both sides’ witnesses and lawyers, is vitally important in a jury’s eyes. After a couple of misleading omissions or other tactics by counsel that are perceived as sleazy or playing fast and loose with the facts, you will lose the jury.
It may be sorely tempting to just stop at a point where the record contains only testimony that your side "likes." And it is clearly a judgment call in trial preparation whether, and how, you plan to go ahead and "ask the question" at trial that will elicit a witness’ known explanation for testimony otherwise favorable to your side. But like going to the dentist, a little pain can lead to long-term gain. The author’s advice: If your opposing counsel has a turn at bat after you, shut your eyes/take a deep breath and "Ask the question." And have your best refutation questions ready to show that, although the witness tries to explain away his or her bad answer favorably, doing so leads to even more problems in his or her side’s case.
The second situation is the situation in which there is no snappy retort known (yet) to qualify the witness’ favorable testimony to your side, and/or you’re the last questioner. In this case, be precise and succinct. Go forth and elicit favorable testimony, all the while bearing in mind that, if the witness has a good rebuttal position, you don’t want to hear it for the first time from the witness stand because you’ve asked the proverbial "one question too many."
With all due allowances for lawyer vanity (there is such a thing?), or perhaps because of it, the usefulness of the truism in this latter situation is obvious and universal. The war stories about lawyers bringing an examination or an argument to a stirring conclusion and then pursuing that one extra point to "really drive it home," are sobering. That "last question" has a substantial, and scary possibility of triggering an unfavorable response from the witness that undoes your shining moment, or triggering a question from the judge(s) in an oral argument that leads to a lengthy diversion on another topic, or triggering an objection from opposing counsel that disrupts the examination flow you are counting on having.
Most skilled advocates would advise you to stay away from such a temptation if there is even a remote possibility of any of this happening, and where, as here, there may be a substantial possibility it will happen, don’t test your luck. When you’ve gotten what you want, sit down. A nice phrase.
Gary L. Urwin, counsel, is a business litigator in the Los Angeles office of Edwards Wildman Palmer. He may be reached at 310-860-8707.