Vail Daily column: How to be (or not be) a witness
When you are a witness at trial, the way it works is this: you’re called to the witness stand and sworn to tell the truth. You state your name, address, etc. You adopt an earnest look. Someone in a sharp dressed suit squares at the lectern as you take in your surroundings. You, perhaps, fidget a bit.
The guy (or gal) at the lectern is a lawyer. Let’s presume that he is your attorney. If so, the questioning, while perhaps pointed, will likely be benign, at least in its delivery. Attorney A (the good guy in your estimation), will ask a bunch of questions which you are under oath to answer truthfully. If he’s worth his salt, then the good-guy lawyer will lead you with his questioning where you need to go to prove your case.
This part of the process is known as “direct” examination of the witness.
What comes next, though, may be considerably less pleasant. A fair comparison may be akin to the distinction between a day at the spa and a colonoscopy.
Attorney B (the bad guy, opposing counsel) assumes the lectern and immediately digs into you. Although his mining of you is limited to what was evoked on direct examination, a different set of rules applies to this part of the process. While in direct examination, the attorney may not “lead” the witness (that is, the attorney may not suggest the answer by the form of his question), not so much in cross exam. In cross examination, opposing counsel may plunder like a Hun.
An example of a leading question may go like this, “Isn’t it true, Ms. So-and-So, that when you ate the offending meal, it caused you to become violently ill and toss your cookies?” Stated in a non-leading manner, the question might be this: “Ms. So-and-So, what happened when you chomped into your meal that night?”
Because cross examination may be leading and because the gloves are off, before a witness takes the stand — usually a day or days before — his attorney will likely “prep” the witness to help him understand the process and take a couple of practice swings in the safe confines of the lawyer’s office.
My spiel usually includes this:
“Answer only the question that is asked of you. Understand?”
A nodded head generally follows.
“OK, let’s practice.” Here I hold up a pen and I say, “Do you know what this is?”
“It’s a pen.”
Here, I say, gently, “No. Wrong answer.” To which my client’s eyebrows inevitably raise. I say, “The correct answer is ‘yes.’”
The bobblehead thing happens again.
I say, “Let’s try again.” I again hold up the pen. “Ms. So-and-So, do you know what this is?”
I say, “Perfect. What is it?”
“It’s a pen?”
“Simple,” I say, “huh?”
Next, we talk about narrative responses. I say, “When you are being cross examined, do not give narrative responses.”
Eyebrows pop again.
“Let me give you an example. How many siblings do you have?”
Here, quite often, So-and-So will launch into a complete genealogy commencing with the great-great-great grandfolks who immigrated from the old country and ending with the most recent touchdown scored by a nephew in New Jersey.
By now, I have learned something about my client. I hold up three fingers. “Ah, no. The answer is ‘three’. Don’t answer anything more than is asked.”
I say, “What do you do for a living?”
“OK,” I say, “A little terse, but I think you’ve got it.”
Next, we talk about not “supposing,” “guessing,” “filling in the blanks” or “trying to please.” I say, “If you don’t know something, it is a perfectly good answer to say, ‘I don’t know.’ If you sincerely don’t remember, it is fine to say that you don’t remember. While you must tell the truth, you are not compelled to fill in blanks for what ‘might have’ or ‘could have’ happened. State only what you know. Got it?”
“And listen carefully to every question. Make sure you understand the question. If you don’t, politely ask that it be repeated.”
Then, we talk about not being argumentative or sarcastic. We talk about being forthright and respectful.
I will usually do this song and dance with the client at least a couple of times until I feel confident that the client will do his or her duty to tell the truth but will restrain from doing more.
Sadly, though, the stress of a courtroom setting too often trumps thoughtful preparation. The brain gets bathed in Loctite and the whole neural mess just goes to hell in a hand basket.
Opposing counsel says, “Ms. So-and-So, where are you from?”
When I hear, “Well … my great-great-great grandparents hailed from … ” I know the ship’s in flames and, without rescue, will soon be sinking.
Sometimes there’s only so much an earnest attorney can do.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.