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THE DIFFICULT WITNESS: A MANAGEMENT LAWYER’S PERSPECTIVE
by
SHAUNA JOHNSON CLARK, PARTNER-IN-CHARGE
Jurors generally understand that they are to decide a case based on evidence. At trials
across the country, one of the first things that the judge tells the jury is that “statements,
arguments, questions and comments by lawyers are not evidence.” Instead, the first type of
evidence jurors are told to expect is “the the testimony of witnesses.” That notion fits well with
the television oath ingrained into jurors: witnesses are to “tell the truth, the whole truth, and
nothing but the truth.” Judges are well conditioned not to take what lawyers say as evidence.
That combination of factors makes witness testimony fundamentally important to any
proceeding. Even the most honest witness finds it hard to speak in the usually foreign setting of
a trial, hearing or deposition. (Those who are familiar with those settings present their own
issues.) Given those circumstances, eliciting clear and persuasive testimony takes considerable
skill. When the witness is difficult, that task can be overwhelming.
The various types of difficult witnesses are too numerous to name. This paper will focus
on four common difficult witnesses: The Lying Witness, the Scared Witness, the Talkative
Witness and The Self-important Witness. Successfully presenting and cross examining these
difficult witnesses is often the key to success at trial.
I.
The Dissembler
A basic belief about testimony is that a witness should tell the truth. Failure to tell the
truth under oath is a crime. Still, for some witnesses, to paraphrase Mary McCarthy, “every
word they say is a lie, including ‘and’ and ‘the’”.
A.
When your own Witness Wants to Stray from the Truth
Some witness simply do not want to tell the truth. While this is always problematic, it
can be especially unhelpful if your witness is doing the lying. Not only will the testifier’s
credibility be damaged, but the credibility of the sponsoring attorney also is harmed when she
elicits untruthful testimony.
There are ethical obligations on the sponsoring attorney if a witness gives testimony the
attorney knows to be false. A lawyer may not “falsify evidence, counsel or assist a witness to
testify falsely.” Model Rules of Prof’l Conduct R. 3.4 (b). Further,. Rule 3.3 of the ABA model
rules prohibits and attorney from knowingly “offer[ing] evidence that the lawyer knows to be
false.” Id. R. 3.3(a)(3). Under the model rules, “[i]f a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.” Id. Finally, the rules do provide that a lawyer is not obligated to let a witness lie—
“[a] lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes is false.” Id.
Preparation is key. If you discover your own witness has a penchant for mendacity,
address it prior to the witness going under oath. Explain first that untruthful testimony is not
only unhelpful, it can be the most harmful thing that a witness can do. Still, if the witness is
willing to disregard his or her oath, he or she may not be persuaded by counsel.
Additionally, in preparing the witness, use documents to show that his or her testimony
will be belied by the documents. Likewise, show the witness depositions of other witnesses,
including the same side to show the witness’ testimony does not match up with any other version
of the facts.
B.
Crossing a Witness Who is a Stranger to the Truth
The situation is different when cross examining a dissembling witness. To show that the
witness is not telling the truth there are several techniques available. First, there is prior
testimony or statements. Nothing is more effective in showing that a witness is not telling the
truth than showing the fact finder that the witness told a different story before testifying in the
proceeding.
Second, an attorney can confront the witness with documentary evidence that contradicts
the witness' false testimony. If there are no prior inconsistent statements, another alternative to
deal with the dishonest witness is the let him testify and commit to his story. Get the witness to
testify in as much detail as possible. If the other witnesses and documents line up against that
witness’ version of events, contrasting the details of the dishonest witness' story with other
evidence will isolate the witness and his story.
II.
The Scared Witness
As trial lawyers, we often forget that a legal proceeding is a strange setting. A downtown
building for an arbitration or deposition can be intimidating for people who do not work in an
office or even in a city. For even more people, a courtroom environment is not a comfortable
place to be. Adding to the discomfort is the fact that witnesses believe (often erroneously) that
their testimony can win (or lose) the case. These factors can lead to a witness freezing or being
too nervous to clearly and accurately recall or discuss events.
A.
Presenting a Witness Who is Afraid
A scared witness can make the sponsoring lawyer or the party who calls the witness look
weak. As is often the case, preparation is key. Spend as much time as possible with the witness
going over what to expect on the stand or in the deposition. Practice the direct examination with
the witness so that the witness can get used to the topics upon which the witness will be
examined. Go over the documents that witness will use so that the witness knows what parts of
each document are important. Further, if at all possible, the attorney who will be examining or
presenting the witness should conduct the preparation. The witness will be more comfortable if
he or she is familiar with the cadence and phrasing that will be used in the actual proceeding.
It is also important that the attorney prepare the witness for cross examination. All of the
preparation on direct can be lost if the witness crumbles under examination from the other side.
After the witness has built up some confidence, have a colleague practice cross-examining the
witness. The practice should include confrontation with documents. It also should be vigorous.
The best scenario is a witness explaining that the deposition or trial was much easier than the
practice.
For all of the practice, if at all possible, use the environment where the examination will
take place. If the testimony will be given in a deposition, go to the conference room where the
deposition will take place. If there is a trial, use the court room or a practice courtroom so that
the witness is not distracted by the place. When practicing with exhibits, use them how they will
be used during the testimony. That is, in a deposition slide a copy across the conference table. If
at trail or arbitration, use the Elmo or exhibit board.
If the witness still cannot become comfortable, use a witness school to educate the
witness on what to expect.
B.
Cross Examining the Nervous Witness
While some lawyers lick their chops when they see a scared witness, care is required on
cross examination. If the testimony is before a fact finder, the lawyer cross-examining a visibly
nervous witness must be careful not to come across as a bully. At the same time, the lawyer does
not want to talk down to the witness and appear patronizing. Instead, be patient and draw out the
testimony out from the witness in small bites. If you have documents, use the documents to
guide the testimony. Also, make sure that the witness is led; the lawyer can tell the story with a
series of yes answers.
III.
The Talkative Witness
At the other end of the spectrum is the witness who is too eager to testify. This witness
wants to get his or her story out, and will use any question as an opportunity to talk about every
topic.
A.
Presenting a Witness Who Will Not Stop Talking
The talkative witness is a challenge for the sponsoring lawyer. In a deposition, one of the
foundational rules for witnesses is to only answer the question asked. The witness who wants to
explain what they know as opposed to answer deposition questions can wade into areas that the
examiner had not thought of or volunteer unhelpful information. Additionally, the talkative
witness may divulge information at a time that is not consistent with the case’s strategy.
To control this witness, once again, preparation is the key. When wood shedding the
witness, videotaping can be helpful. A witness seeing and hearing themselves droning on and on
might illustrate to that witness that short answers are key. Additionally, let the witness know the
full case strategy. If the witness understands that he or she is one brick in the wall of the case,
they may not feel the need to build the entire case himself.
B.
Crossing a Witness Who Will Not Shut Up
When crossing a witness that will not stop talking, the strategy is different depending on
the different contexts. In a deposition, it is effective to let the witness talk. The witness’
rambling might lead to more information than initially thought. Of course, a five paragraph
answer is not effective for a motion or impeachment. Consequently, when a long answer is
given, loop the portion of the answer needed back to create a yes or no question. For example, if
the witness were asked:
Q.
Were you ever criticized for poor work performance?
A.
What happened was, my supervisor was out of his mind. He was out to get me
from the beginning. In 2007, he tried to say that I was late too often, but there were a lot
of people who were late. They did not ever get in trouble. Plus, I called and told him
that I was going to be late every time. A lot of times, he was not there to take the call.
He was late himself. In 2008, I had that customer issue, but it was not my fault. That
customer was very rude to me, and he did not need to call up to complain. There were
other people whose customers complained, but the supervisor never wrote it down.
Q.
I understand. So you had negative evaluations in 2007 and 2008, correct?
A.
Correct.
By looping, the lawyer gets a sound bite that can be dropped into a motion or used to impeach
the witness w in later testimony.
If the witness is testifying live, the examining lawyer can try several techniques. First,
the lawyer can summarize the points for the jury by writing them down. For example, the
witness gives a two minute speech, with two points that are relevant, the lawyer can write down
those two points.
Second, the lawyer can escalate and repeat the question. “I am sorry Mr. Witness, thank
you for your answer, but I don’t think that you answered the question that I was asking. Let me
ask it again . . .” After several times of that, asking the same question with the same inflection
can prod a witness to answer the question directly. Finally, the lawyer can ask the judge for
help. The problem with asking the judge for help, however, is you might not get it.
IV.
The Self-important Witness
Some witness are difficult not because they talk too much or because they are scared.
These witnesses are confident that they are smarter than everyone else in the proceeding,
including the sponsoring lawyer and the attorney who is cross examining them. Sometimes they
are. The self-important witness creates a host of problems because even though a witness is selfimportant, he also may be important to the case.
A.
Presenting the Witness Who is the Smartest, Busiest, and Most Important Person
in the Room.
The self important witness is difficult to control, and she may decide that she likes her
theory of the case better than the lawyer’s. Consequently, this witness may make it difficult to
stay on message. Also, if the witness is not an expert or someone over whom the sponsoring
lawyer has control, the witness may not make herself available for preparation. Without
preparation, even an experienced witness may harm the case. At trial, the jury or judge will see
the witness’ arrogance and may not only hold it against the witness, but also transfer that dislike
to the sponsoring attorney. Finally, the witness who is arrogant to the opposing side, may
engender sympathy for the abused counsel who is trying to cross examine her.
If the self-important witness will allow it, preparation can help temper ego. A videotape
of the witness may assist with all but the most self-absorbed witness. Also, bringing in a
colleague to vigorously cross-examine the witness may help show that the witness is not the
master of the proceeding. Finally, if the time allows, a consultant may be able to assist with the
witness.
If the witness will not or cannot be prepared, the sponsoring lawyer must take care not to
join the witness’ arrogance. The lawyer must be humble and try to keep the witness’ arrogance
from attaching to her side of the case.
B.
When Facing the Arrogant Witness
When deposing the arrogant witness, there is not much to do but take it. Videotaping the
witness can be helpful; knowledge that the court or jury may see the witness sometimes tempers
that witness’ behavior. Also, regardless, remain polite and do not respond to any personal
attacks. Creating a contrast between the examiner and the arrogant witness will serve the
attorney well.
In trial, if the witness is more knowledgeable than the attorney, limit questions to things
that the witness must concede. Finding articles or other documents that the witness must accept
can defuse the witness’ confident façade. Alternatively, an attorney can isolate that witness.
That is, as with the lying witness, if the arrogant witness’s testimony or opinion is different from
others’ testimony, document the witness’ testimony and illustrate how it differs from other
witnesses.
V.
Conclusion
Lawyers apply facts to law. Gathering those facts from documents and witnesses is a
challenge when the documents are easy to find and when the witnesses are cooperative and clear.
It, however, is the rare case in which there is not at least one difficult witness. Preparation for
that witness and a thoughtful approach to presenting or cross examining that witness can help
develop and present facts in a persuasive and productive manner.