secrets || evasive witnesses

Evasive WitnessesAuthor(s): James W. McElhaneySource: Litigation, Vol. 20, No. 3, SECRETS (Spring 1994), pp. 47-48, 54-55Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759710 .

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THal Notebook

Evasive Witnesses Beth Golden glared at the witness in

disgust. She walked purposefully back to the counsel table, slammed down her

yellow legal pad and said, "No further

questions, Your Honor." She had just finished her first cross-examination of the man reputed to be the toughest wit? ness in town?Dr. Michael Finnegan, the economist. Mike Finnegan has more trial time

than lots of experienced lawyers ever

get, and he has more ways to avoid

answering difficult questions than most books on cross-examination even list. It was the first time Beth was up against "Famous Finnegan," so she had asked

Angus to come and watch. At the end of the day she asked for his critique.

"So what do you think, Angus," said Beth. "Not bad for the first time, huh?"

Angus smiled. "Logically, you destroyed him," he said. "I listened very carefully, and you showed that

Finnegan's calculations were based on

nothing but a series of unjustified sup? positions.

"But there's more to it than just logic," Angus said. "How do you feel about it?"

"I feel like I really kept him in line," said Beth. "I didn't let him wiggle an inch. Every time he wanted to 'explain'

by James W. McElhaney Senior Editor

his answer, I cut him off. Every time he tried to volunteer something when there was no question pending, I put a

stop to it. Every time he tried to inject something different, I rubbed his nose in what he had done. I'd say the score

was Lawyers-10, Economists-O."

"Let me ask you a question," said

Angus. "How do you feel when a wit? ness gives you an evasive answer?"

"How do I honestly feel?" asked Beth. "I resent the hell out of it. I figure they are just trying to interrupt my show?doing what they can to throw a

monkey wrench in my case. I'm enti? tled to ask my questions my way, and

they're supposed to give me straight answers?not play little word games. But at least I have some techniques for

dealing with the situation." "That's what I thought," said Angus.

"And now I'm ready to finish answer?

ing your question?if you want it." "Of course," said Beth. "That's why I

asked you." "Like I told you," said Angus, "Log?

ically, your examination was masterful. You won, hands down. But emotion?

ally, Finnegan killed you. By the end of

the cross-examination, everyone on the

jury was convinced you had kept this

simple economics teacher from telling his whole story. You looked like you beat him up, and it's going to cost you something before the trial is over."

It's Not Just Logic Bern's problem is a classic one. It is

the difficulty that besets the journey? man cross-examiner?the one who has

progressed beyond asking long, ram?

bling questions or asking a witness

"Why?" The journeymen are lawyers who

have already achieved some technical

proficiency in examining witnesses.

They understand that cross-examina? tion is a special opportunity for the

lawyer. It's not just poking a hole in the witness's story here or there. Cross examination is the opportunity for the

lawyer to be the witness. It lets the

lawyer do the testifying, and if he does it right, the witness on the stand has to admit that what the lawyer says is cor? rect. Done right, the witness's very reluctance helps validate what the cross-examiner says.

And the rules help create that

impression. You can ask leading ques? tions on cross-examination?not just to

Litigation Spring 1994 Volume 20 Number 3



control the witness, but also to create the subliminal impression that the wit? ness can't quite be trusted?she needs to be told what to say. And non-respon? sive answers can be stricken precisely because cross-examination is designed to give the lawyer the opportunity to tell "the rest of the story."

But in the logical process of provid? ing the judge and jury with informa? tion, the evasive witness is a genuine fly in the communication ointment.

Every evasion stops the flow of infor? mation. It lets the air out of the impres? sion the cross-examiner has been build?

ing. It distracts the judge and jury with

yet another bout between lawyer and witness.

And so journeymen trial lawyers often fall into the same trap that Beth Golden did. They resent the evasive witness and slap him down at every opportunity.

But the purpose of cross-examina? tion is not just to get information across. It is to create the right impres? sion. Deanne Seimer, of Washington, D.C., author of Tangible Evidence

(1987), says that most of the time you don't really develop much information on cross-examination.

"Normally, you've got everything you have to prove in your own case in chief," Seimer says. "So the point of cross-examination is not so much to get information, but to show something about the other side. The purpose of cross is to tell the good guys from the bad guys."

Seimer's point is a good one. Too much witness control is like your neighbor who uses a choke leash to walk his dog. You may not start out lik?

ing the dog, but before long you sym? pathize with him for the way he's being treated.

Expect Evasion You may not believe you do it your?

self, so watch other lawyers do some cross-examinations. It is amazing how

many lawyers take every nonrespon sive answer as a personal affront. And once the lawyer takes it personally, it's

only a matter of minutes until the "good guys" are the other side.

You see the problem. We act as if evasive witnesses are some sort of odd?

ity?and that they only do it to annoy. But the truth is, evasion is a natural

phenomenon. ? Witnesses do it because they

tend to identify with the party that calls them to the stand.

? They do it because they think the cross-examiner is trying to "twist their words"?to get them to say something other than what they want.

? They do it because they have not been trained to think closely and answer precisely.

? They do it because a series of

leading questions is different from what they were answering a minute ago on direct examina?

tion, and they can't shift modes so quickly.

? They do it because they resist

being dominated by a lawyer who is only going to let them answer "yes" or "no."

You should expect evasion. It's nor? mal. And if you understand why wit? nesses do it, you are less likely to take it personally.

Go ahead and read that last paragraph again. It has one of the most important ideas in the whole column. If you learn not to take the witness's evasive answers personally, you are going to become a much better cross-examiner.

Stop Choking the Witness One of Angus's favorite sayings is

"Cross-Examination is not Angry Examination." And he's right. Once

you stop getting angry at the witness, there is a whole list of things you just won't do anymore:

? Browbeat and bullyrag the witness

? Use sarcasm

? Insist on your own terms ? Cut off the witness's answer ? Insist on just a "yes" or "no" answer ? Ask the judge for help with the witness

If you think that's giving up a lot, look at what you can do instead.

1. Take the blame. The situation repeats itself thousands

of times every day. You are cross-exam?

ining the plaintiff's doctor about his

diagnostic workup. And you ask him whether he did a spinal tap to help him reach his opinion.

But instead of admitting that he didn't do a spinal tap, the doctor gives you a five minute harangue about the

dangers of spinal taps, their high cost, and the pain they inflict on the patient.

Does it seem to you that the doctor avoided answering your question?

Of course. You asked "what," and he

told you "why not" in a speech that dis? tracted everybody from what you were

establishing. Does it seem to the jury that the doc?

tor avoided answering your question? Hardly. He gave you a lot of infor?

mation about spinal taps. Isn't that what you wanted?

Of course not, but they don't know

that?yet. Instead of telling the witness just to

answer the question, or asking the court

reporter to read it to the witness? which will kill the entire pace of the cross-examination by forcing the

reporter to pour back over several feet of fan-fold stenotype paper?try taking the blame.

Q. I'm sorry, Doctor, I must not have put that question very well. What I wanted to know is whether you ever did a

spinal tap on Mr. Blattner?

Two things have happened. First, you're the good guy. Second, the jury has figured out that for some reason the doctor wasn't comfortable admitting he hadn't done a spinal tap.

2. Ask the question again. If the situation escalates (as it some?

times does), continuing to take the blame can get tiresome. You can just ask the question again?exactly the way you did the first time. But watch your tone?remember, you're the good guy.

As Charles L. Becton of Raleigh, N.C., says, "When you ask the question a second time, hope that your opponent will object that you've already asked that question. It lets you say, 'We have,

Your Honor, but we still don't have an answer.'

"

3. Let the witness answer.

Lawyers drilled in the late Irving Younger's Ten Commandments of Cross-Examination have learned to "Never Let the Witness Explain." Why not? For fear that he might say something

that would hurt your case. If you think about it for a minute,

you will realize that if he doesn't say it now, he will get another opportunity to

say it on redirect?often with a very pointed question:

Q. Mr. McElhaney didn't ask you this question, so I will. Why didn't you do a spinal tap on Mr. Blattner?

So the chances are, the jury is going to hear "why" sooner or later. And

maybe it would actually be better for

(Please turn to page 54)




some detail what conduct is unaccept? able at a deposition?and not just for the lawyer representing the witness, but also for the lawyer asking the ques? tions. Perhaps these rules also should

spell out precisely what a lawyer faced with various kinds of misconduct is

expected to do and what penalties will be imposed. As in some big cases, a

magistrate could be put in charge of

discovery and could be reasonably available by telephone. Some courts, such as the California state courts in San Francisco, have "discovery com?

missioners" whose sole purpose is to

adjudicate discovery disputes. The risk in all these solutions is that they may be like new highways; they may just gen? erate more traffic.

Another, radically different, alterna? tive exists?videotape. The increased use of video depositions may dampen deposition thuggery. The prospect of

having a judge?or jury?see and hear "You could gag a maggot off a meat

wagon" might be the most effective deterrent to such comments. It certainly would undermine a lawyer's attempt to

portray himself in the courtroom as just a good ol' boy amidst a covey of New York lawyers in $1000 suits, as Mr. Jamail did so successfully in Pennzoil. The sanction of publicity, not money, might be the ultimate deterrent.

In the old days, school miscreants were compelled to sit on a stool in a corner in the front of the classroom while wearing a conical cap. Maybe the custom should be revived. 10

Pleading

the Fifth

(Continued from page 35)

his own appointment calendar at work, is it a corporate document not subject to the privilege, or a personal document as to which the privilege could be asserted?

Courts use a "functionality" test. In re Sealed Case, 950 F.2d 736 (D.C. Cir

1991). Several factors are considered: who prepared the document; the nature of its contents; its purpose or use; who maintained possession and had access to it; whether the corporation required its preparation; and whether its exis? tence was necessary to the conduct of

the corporation's business. In re Grand

Jury Subpoena Dated April 23, 1981, 657 F.2d 5 (2d Cir. 1981).

So, what about Smith's calendar? If he kept it, used it for personal and busi? ness purposes, and used it as a personal diary, with no one else having access, the calendar probably can be protected under the privilege. If Smith's secretary had constant access to it, and it recorded

only business matters, it is probably more a corporate document and is likely not protectable.

So far, the discussion here has only concerned Fifth Amendment issues that

may come up in formal discovery. What about kformal discovery. The advice, if

you have a client with criminal troubles invited to provide informal discovery in a civil case, is simple: Unless absolutely necessary, say no.

If the judge denies your motion to

stay discovery and your client persists (wisely, given the risk of conviction and jail) in invoking the privilege, you can expect a motion for sanctions. Any of the sanctions mentioned in Rule 37 is possible; the most common sanction is to prevent the party asserting the

privilege from offering evidence in

support of claims or defenses related to the matters to which the privilege was asserted. See, e.g., In Re Anthracite

Coal Antitrust Litigation, 82 F.R.D.

364, 368-9 (M.D. Pa. 1979). In other words if you won't testify about an

issue, you lose on it.

And there is another, sometimes more serious, risk: The Fifth Amend? ment does not prevent adverse infer? ences to be drawn and argued against parties in civil actions when they refuse to provide relevant evidence on the basis of the privilege against self incrimination. Baxter v. Palmigiano, 425 U.S. 308 (1976). Your opponent in a civil or regulatory proceeding will

push to introduce your client's invoca? tion of the privilege in discovery?you can count on it. Not only is the infer? ence valuable, but pointing out that someone has "taken the Fifth" will give him a tinge of criminality and eva?

sion?especially with jurors. Try to ward off this rhetorical, dra?

matic manipulation of the privilege with a motion in limine under Federal Rule of Evidence 403. Argue that the witness has already (probably) been sanctioned and cannot introduce evi? dence to support certain claims and defenses. Evidence that he relied on his

constitutional right to assert the privi? lege is not needed, you should argue.

And, anyway, its prejudicial effect out?

weighs its probative value. Also, and

importantly, jurors may be confused; in

fact, that may be exactly what your opponent wants to do. Jurors may not

appreciate that the invocation of the

privilege is a constitutional right, a

right intended to protect the innocent and not just the guilty.

The Fifth Amendment in parallel civil proceedings is a briar patch. It can snare and tear you if you make a mis?

step. As a general proposition, your client should invoke the privilege in civil and regulatory proceedings when faced with questions that call for possi? bly incriminating responses. But do not outsmart yourself. Invoking the privi? lege when it is not necessary may bring unnecessary sanctions. The best you can do is to know the basics, investi?

gate the case early, decide on a strategy, and constantly consult with criminal counsel. Above all, think, and then think twice more, before proceeding. D

Trial

Notebook

(Continued from page 48)

them to hear it now?when you have a

good opportunity to east a little doubt on some of the witness's reasons. After

all, it's better than waiting for re-cross.

But a lot of lawyers don't think that

way. They are convinced that, like the bite of the hooded cobra or perhaps the dreaded fer-de-lance, letting the wit? ness explain on cross-examination will

produce instant agony ending in certain death.

So to forfend that awful end, they do

anything they can to cut off an answer that says anything more than "yes" or "no." They interrupt with loud "Thank

you's," "Answer the question," "Just

answer 'yes' or 'no,' "

"You didn't lis?

ten to my question," or "Your Honor, would you direct the witness to answer the question?"

Now who's evasive? The lawyer. And look at the real

message his evasion sends: "This is awful stuff. If you hear much more of

this, it's going to change your view of




the whole ease. Please don't pay any attention to it."

Trying to cut off the witness is almost always a mistake. First, it is no

way to win the good guy battle. Sec? ond, even if it temporarily stops the witness, the other side will usually object that you are interrupting the wit? ness and nine times out of ten the judge will say, "the witness may explain his answer."

You are much better off letting the

jury see that the witness is too much of an advocate in the case.

4. Does that mean yes? This technique takes all of the wit?

ness's verbiage and sets it off to the side. Try it in the spinal tap situation.

Right after the doctor finishes his long harangue, you say, "Pardon me, Doctor, but does that mean no, you didn't do a

spinal tap on Mr. Blattner?"

5. Did your lawyer tell you to say that?

You've got to be careful with this one, because it's easy to sound snotty. But if you do it with a twinkle in your eye and a smile on your face (as if to

say, "Hey, you rascal, I see what you're trying to do"), it can be very effec?

tive?especially if the evasion uses words you wouldn't expect from this witness:

Q. Mr. Johnson, did you pull off the road when you saw the tractor coming toward you?

A. Well, I was faced with this sudden emergency in which I had no realistic opportunity to take any evasive action... (and on he goes for three more minutes with his prepared statement).

Q. Pardon me, Mr. Johnson, but did your lawyer tell you to say that?

6. I'm sorry, but the rules of evidence don't let me answer your question.

One way to evade a question is to ask another one in return. It happens fairly often, and when witnesses ask ques? tions, lawyers usually handle it poorly.

We tend to say something like, "You don't seem to understand. I'm the

lawyer?you're the witness. I ask the

questions, and you give the answers." What's wrong with that?

Plenty. First, it flunks the good guy test, just by telling everybody that

you're a lawyer, entitled to special con? sideration. Second, now you are dodg

ing the question again, not the witness.

Try this instead. "I'm sorry, Mr. Williams, but the rules of evidence don't

permit me to answer your question. If

they did, I'd be happy to explain exactly what you should have done." Besides

being a good reason for not getting into an argument with the witness, this

response gives you the whole rest of the trial to think of an answer that you will

give the jury in final argument?when the witness can't talk back.

7. That's the best you can do? There are times when the expert wit?

ness on the other side will dodge a

tough question rather than meet it head on. So Deanne Seimer likes to set up her response right at the beginning of the cross-examination:

Q. Dr. Finnegan, you have been

working with this case for a number of months, haven't

you? A. That's right. Q. Actually, almost a year? A. Yes, that right. Q. And you have had your depo?

sition taken? A. Yes.

Q. And you've given thought to

your direct examination? A. Yes.

Q. And you know that there are some difficult questions involved in this case?

A. Well, yes.

Q. And you've given some

thought to how you're going to answer those tough ques? tions?

A. Yes.

Q. And you're fully prepared and

ready to go? A. Yes.

All that is preparation for later on in the examination, when the witness tries to slide past a tough question. Then Seimer asks,

Q. I want to understand?that's your very best answer. That's the best you can do with this

question? A. Yes.

Then in final argument Seimer says, "Remember I asked Dr. Finnegan about that point, and he said that's the best he could do."

8. That's going to be up to the jury. You ask the witness whether he

could have pulled off the road. But

instead of the obvious "yes," you get a little speech.

A. Well, counselor, I did the only proper thing that I could under the circumstances. I hit my brakes.

That lets you respond:

Q. Whether you did the proper thing is going to be up to the

jury in this case, Mr.

Reynolds. What they need to know is whether you could have pulled off the road. 10

Cross

Examination (Continued from page 10) had to show was: a stolen car; a driver; driven across state lines.

With the government's star witness on the stand, Waska turned to the jury and, I swear, thumbs tucked under his

suspenders, asked: "Did you see the defendant driving the car through Texarkana [a small Texas town that straddles the Arkansas border]?" The witness looked carefully at the defen? dant and finally answered, "No, sir. I sure didn't. Never seen him driving at all. In fact, never seen him before

today." One could hear the SNAP of Waska's suspenders in adjoining court? rooms but no emotion creased his face.

Without turning from the jury the young prosecutor murmured emphati? cally, "Exactly. Exactly my point."

That was a response of historic pro? portions. Waska seemed unconcerned

by devastating testimony. A trial lawyer should always act as if he has faith, even when a spring-loaded witness causes him to consider wearing Hug gies during his next trial. Never, ever, let them know, in the words of a Texas trial lawyer, where your buttons are.

Unfortunately, trying a lawsuit is not a "catch and release" sport. Winning lawyers, predatory lot that we are, are

unlikely to throw back our verdicts in the interest of good sportsmanship. Therefore, it just makes sense to out?

perform opponents at every turn?and

especially during cross-examination. While you can watch good lawyers do it, while you can listen to their self




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