Strategies for Difficult WitnessesStrategies for Difficult Witnesses(Yours and Theirs)(Yours and Theirs)

By:By:

John F. Nichols, Sr.John F. Nichols, Sr.

Presented by Claude E. DuclouxPresented by Claude E. Ducloux

Originally presented at:Originally presented at:

State Bar of Texas Advanced Trial StrategiesState Bar of Texas Advanced Trial Strategies

February 2014February 2014

New Orleans, LouisianaNew Orleans, Louisiana1

I. IntroductionI. Introduction

This article is for lawyers and judges who enjoy jury and nonjury trials. Dealing with difficult witnesses is a part of our daily bread. This is an attempt at the development of strategies for dealing with difficult witnesses.

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II.II. How Lawyers Bug Juries How Lawyers Bug Juries (and Judges) with Witnesses(and Judges) with Witnesses

1) Too many repetitive questions.

2) Using legalese with witnesses, without explanation.

3) Jurors not being able to ask question (this may be changing).

4) Attorney’s bickering with witnesses.

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III. Things Juries Most Enjoy About III. Things Juries Most Enjoy About Examination of WitnessesExamination of Witnesses

1) Connecting the testimony to jury selection and opening statements.

2) Watching the body language of witnesses.

3) Watching a lying witness squirm on cross-examination.

4) Watching a difficult witness have their “come-uppance.”

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IV. Golden Rules of Witness IV. Golden Rules of Witness ExaminationExamination

1) Be prepared.

2) Be brief.

3) Be professional.

4) Be seated.

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V. V. “Do’s” and “Don’ts” of Witness “Do’s” and “Don’ts” of Witness ExaminationExamination

1) Sell yourself on a point before cross–examining a witness.

2) Cross-examine the witness for the right reasons.

3) Cut out the small talk and get down to business with the witness.

4) Forget about stereotypes.

5) If you get knocked down, get back up.

6) Show your anger or disgust, when appropriate.

7) Always be learning.

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V. V. “Do’s” and “Don’ts” of Witness “Do’s” and “Don’ts” of Witness Examination (cont’d)Examination (cont’d)

8) Be in charge of your examination.

9) Get, be, or feel, comfortable in examination.

10) If you get hot on a point, stay hot until the point is established.

11) Be positive.

12) Don’t make the witness examination look and feel like you should be replaced.

13) Put your whole effort into it.

14) Leave your disgust with the witness at the courtroom.

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VI.VI. Selling Yourself With the Selling Yourself With the Judge/Jury on Examination of Judge/Jury on Examination of WitnessesWitnesses1) You are a salesperson.

2) Always be selling.

3) In direct or cross-examination you are:

A. a seller;

B. of a product (your point or facts);

C. to a buyer, the jury.8

VII.VII. Fundamental Concepts of Selling Your Fundamental Concepts of Selling Your Case to the Jury on Witness Examination.Case to the Jury on Witness Examination.

1) Decide on story model.

2) Build on the story with the jury, through direct or cross-examination.

3) Follow, or track, your opening statement.

4) A credible witness is a believable witness.

5) A credible lawyer is a believable lawyer.

6) Anchor to your theme or story model on direct and cross-examination. 9

VIII.VIII. A Word About Body LanguageA Word About Body Language

1) Everyone communicates with non-verbal signals.

2) Jurors perceive communication through sight (85%), hearing (8%), and other senses (7%).

3) Your character equals believability.

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IX.IX. “Buy signals” Sent by Witnesses“Buy signals” Sent by Witnesses

1) Open palms.

2) Relaxed body posture.

3) Happy face.

4) Synchronized body movements.

5) Expression of positive feelings.

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X.X. Lie Signals Sent by Witnesses.Lie Signals Sent by Witnesses.

1) Changes in mood, stance, posture and facial expression.

2) Finger over mouth shows intuitive thinking about answer to question.

3) Overstated feelings can be a concealment of the truth.

4) Freudian slips with immediate editing.

5) Decrease in gestures.

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X.X. Lie Signals Sent by Witnesses. Lie Signals Sent by Witnesses. (cont’d)(cont’d)

6) Decrease in words used.

7) Incongruent body signals.

8) Decrease in eye contact.

9) Autonomic (lack of control) signals such as sweating, breathing, dry mouth, etc.

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XI.XI. Believability Scale of Witnesses – Believability Scale of Witnesses – Most Believable to Least BelievableMost Believable to Least Believable

1) Autonomic signals (sweating, deep breathing, being flush).

2) Leg and fee movement.

3) Trunk movement.

4) Hand movement.

5) Face movement.

6) Verbalization (testimony).

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