THE WEASEL FACTORAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 75, No. 2 (FEBRUARY 1989), pp. 84-85Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760359 .

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Litigation

THE WEASEL FACTOR BY JAMES W. McELHANEY

It is a way of looking at witness control.

You ask a question on cross-ex

amination, and instead of a straight forward answer, you get something else. The witness evades, argues or answers some question other than the one you asked. Barbara Caulfield of San Francisco explained it to a young lawyer who was struggling for con trol of a difficult witness at a Na tional Institute for Trial Advocacy training program.

"Don't you see what is happen

ing?" she asked. "When you ask this witness a question, he is evading you. It's just as if he were holding up a

weasel in your face and saying, can't answer your question because I've got this weasel with me.'

"What you've got to do is take away his weasel. In effect, your re

sponse has to say, 'Let me hold the weasel so you can answer the ques tion.'

"

Barbara Caulfield was on to

something. There is a weasel trans action in almost every problem of witness control.

INITIAL CONTROL Some witnesses challenge a

cross-examiner on the very first se

ries of questions. It is usually a mis take not to use this opportunity to show the witness that you are in con trol. Not that you have to be loud, rude, offensive or overbearing. Far from it. Cross-examination does not

mean angry examination.

But on the other hand, once you lose control of a witness, it is hard to

get it back. So if you are going to maintain control, do it from the very start, even on preliminary matters.

For example: Q. You are married, aren't you? A. (In a flippant tone) You could

say that.

In weasel terms, the witness has

James W. McElhaney, the Jo

seph C. Hostetier Professor of Trial Practice and Advocacy at Case Western Reserve University School

of Law, is a senior editor and col umnist for Litigation, the journal of the ABA Section of Litigation.

ABAJ/JOHN SCHMELZER

said, "Watch out, I may have a weasel here."

Your response has got to be: "It doesn't matter whether you have a weasel. You need to answer the ques tion." And one of the easiest ways to do that is to just restate the question.

Q. Are you married? A. Yes.

YES, BUT "Yes, But" is a weasel game that

experts like to play. Here is how it works. Instead of answering your question directly, the witness gives a

lengthy "explanation" that is an ef fort to get around your point. Even

though the "explanation" is not re

sponsive, far too many judges refuse to strike the extra information, say ing "the witness can explain his an swer."

Watch "Yes, But" in action.

Q. Doctor, can we agree that the spinal tap can be a useful medical test?

A. Yes, it can be. Q. Doctor, when you examined

Mr. Murphy, did you do a spinal tap on him?

A. I'm afraid you don't under stand the distinct risk involved in an invasive diagnostic procedure such as a lumbar puncture or spinal tap, as it is called. In addition to considerable expense and pain, there is a real pos sibility of permanent neurological in jury.

What do you do? Look at the un

derlying weasel transaction: Q. Did you do the test? A. I'm not going to talk about

tests, I'm going to talk about weasels. You respond by saying, Q. That's a weasel you've got in

your hands, isn't it? Which translates into: Q. Pardon me, Doctor, does that

mean you didn 't do the spinal tap on Mr. Murphy?

That question not only makes it clear that the witness did not do the test, it shows the jury that he has been holding up a weasel instead of an

swering the question.

CHANGE THE SUBJECT When a witness answers a dif

ferent question on cross-examination

than the one asked, it is a special type of weasel game?"Change the Sub ject."

Q. Sergeant Michaelson, you did not hear about Bill Dowland's arrest until April 13, did you?

A. I was initially assigned to the Dowland case in February and worked on it until the middle of May. Because it involved both wiretaps and coordinating several undercover agents, I was put in charge of a spe cial communications task force.

What he has said is true. While it does not particularly hurt you, it does not answer the question, either. In weasel terms, it is basic: "I asked you about cats and dogs, but you told me about weasels."

The translation is a little bit dif ferent than merely repeating the question. It tells the witness you are

repeating the question.

84 ABA JOURNAL / FEBRUARY 1989

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Q. Sergeant Michaelson, my question was, you did not hear about Dowland's arrest until April 13, did you?

A. No.

The difference between just re peating the question and saying you are repeating the question becomes important if you have to escalate the battle. Say, for example, the witness does not answer the question the sec ond time. Then you can say:

Q. Sergeant Michaelson, the sub ject is Mr. Dowland's arrest. My ques tion is, you did not hear about it until April 13, did you?

A. Oh, I'm sorry. That's right. I didn't hear about it until April 13.

OPEN-ENDED QUESTIONS If you ask a witness to explain

something on cross-examination, you

usually are asking for trouble. You will get the explanation, but chances are you will not like it. One of the reasons why questions that ask for information are dangerous on cross

examination is the unintended mes sage you send: This witness can be trusted to give reliable information.

You will not ask open-ended questions if you think about the un

derlying weasel transaction: "Would you like to talk about weasels? That's fine with me, ladies and gentlemen of the jury. He's an expert on wea

sels."

LONG QUESTIONS The weasel theory shows why it

is a mistake to ask long questions on cross-examination. The longer the question, the more qualifiers it con tains. And the more qualifiers it con tains, the more opportunities it offers to disagree. In weasel terms, a long question is like saying: "Here is a whole box of weasels. See if you can find one you like."

PRIOR INCONSISTENT STATEMENTS

One of the most effective ways to undercut the testimony of a wit ness is to show that what he said be fore trial contradicts what he is saying now. Yet there is something doubly unfortunate about the way we usu

ally finish an impeachment with a prior inconsistent statement from a deposition. After confronting the witness with the inconsistent ques tions and answers, we ask:

Q. Did I ask those questions and did you give those answers on that occasion?

What is wrong with that ques tion?

Two things. First, it appears as if you are test

ing the witness's recollection about the exact words he used at the dep osition. You get to look at the script, but he has to rely on memory. While it may reveal an inconsistency, it seems somehow unfair.

Second (and far worse) is the weasel message it sends: "This con tradiction is not as bad as it looks? have a weasel."

It is an open invitation to chal lenge whether the statement you have read was really what was said at the deposition.

So instead of asking the tradi tional question, let the witness look at the deposition as you read the questions and answers that are in consistent with his testimony. Then ask:

Q. Did I read that correctly? You know he will have to an

swer yes.

BOILERPLATE Finally, the weasel theory shows

why the boilerplate questions that some lawyers use at the beginning of depositions are so important. Those questions should get the witness to acknowledge on the record that:

He is under oath. He has no medical condition

that will keep him from answering questions.

He should not answer if he does not hear the entire question.

He should not answer if he does not understand the entire question.

If he needs to take a break or even recess for the day, he should say so.

If he remembers something that means he should change an answer to make it truthful, all he needs to do is say so.

With questions like that at the beginning of the deposition, the law yer is protected if the witness tries to pull a weasel when he is impeached with his deposition testimony. If he says he was tired or confused, the lawyer can read the boilerplate to the

witness. Its message in weasel terms is simple: "I'm sorry, but the weasel is in a trap."

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