Controlling Witnesses on Direct and Cross by Ben Rubinowitz and Evan Torgan
In
virtually any case you try, you will be confronted with the uncontrollable witness. Unfortunately, an outof-control witness can destroy a case. Your job is to prevent this from occurring. There are many ways to deal with the out-of-control witness, but the starting point is to listen to the witness and to pay attention to each answer. As attorneys, we are very good at speaking to people, giving advice and pontificating, but often not so adept at listening to what people have to say. During a trial, although oratorical skills are important, good listening skills are critical. Moreover, although most trial attorneys are worried about controlling the adverse witness, controlling their own witness is just as important.
Direct Examination Most attorneys, while proud of their cross-examination skills, neglect the required devotion to artful direct examination. The first step to control on direct examination is to understand the parameters. While control is paramount, understanding that direct examination must be generally conducted in a nonleading format is crucial. Most leading questions will draw objections, so take control of your direct by utilizing questions that elicit narrative responses. Questions that begin with words such as who, what, where, when, how and why should always elicit narrative responses. Therefore, most questions during direct examination should begin with such words. Here is an example: Q: What is your name? Q: Where do you live? Q: How long have you lived there? Q: Who else lives there? Q: When did they move in with you? Q: Why did you move there? To continue to exercise control, you need to use transitional phrases to direct the witness into a new area of inquiry. Such
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Attorney Journals San Diego | Volume 221, 2022
transitional phrases are leading in nature, but because they include words of transition, are permissible. Q: I direct your attention to June 12, 2010, at approximately 6 o’clock in the evening, and I ask you: Where were you at that time? Q: Did there come a time that the police arrived? Q: Directing your attention to the bottom of the page titled nursing notes, whose signature appears there? Following up answers with words that cajole the witness to respond also helps you exercise control over the witness: Q: What happened next? Q: Continue. Q: Proceed. Q: Go on. Q: Describe. Of course, even with artful questioning and thorough preparation, you can run into an unresponsive and out-ofcontrol witness. Take your client, for example, who has never testified in court before. Nervousness and adrenaline can take control of the situation, and the direct can end up going something like this: Q: Where do you live? A: I have lived there for 20 years. Q: How many children do you have? A: I love them. They are all wonderful. Q: Did there come a time that an ambulance arrived? A: I was in agony, writhing in pain on the ground. To prevent these types of answers from destroying the direct examination, you must listen to and scrutinize the responses. Many lawyers, even on direct examination, are tied to their
