Imagine you are finally in trial after a hard-fought discovery and pretrial process. Your opponent has battled on every point, many times simply to oppose what you want. Your frustration grows as the court rules in your opponent’s favor on motions in limine (pretrial evidence exclusion motions) thus removing from your arsenal some of your best evidence. At each phase of the trial your opponent objects to everything. His strategy continues into your witness examination.
The judge says, "You may call your next witness."
You rise looking at the jury to gage their reaction and announce, "Plaintiff’s next witness is the Defendant, Josiah Wrongful."
Wrongful’s attorney rises, "Your honor we object to Plaintiff calling Mr. Wrongful in their case in chief."
The judge overrules the objection, "Counsel, Plaintiff can call and cross examine the Defendant during their case. Let’s get going."
It is now payback time for all the frustration you have felt throughout the case. You are prepared. Your deposition summaries are at hand and indexed. Each discovery response is marked and you have lodged the original request and response with the judge. Each exhibit you intend to use is arrayed, marked, and cross referenced to other relevant exhibits. You feel power and control racing through you veins as you rise to examine.
But the witness does not play straight. You ask limited questions, leading on cross. But the defendant does not answer either "yes" or "no." He pontificates. You try to cut him off before he can run away with another answer, but your opponent successfully urges the judge to allow the witness to answer the question. You start moving to strike the non-responsive portions of each answer, but watching the jury, you sense they do not understand why you are playing "attorney games" and trying to hide the truth from them.
You fall back to law school. You remember your professor taught, "Ask the judge to instruct the witness to answer the question." Unfortunately, the judge is not willing to do that and responds, "I think the answer is responsive."
What can you do? If the Defendant won’t answer your question straight, most of your prepared cross will not make sense, much less help you.
AN OUT-OF-THE-BOX APPROACH
This suggestion is not for everyone, and definitely not for you if you are facing your first jury trial. It is something that I hit on one day when I was so in the moment at trial that it just came out and worked perfectly.
Assume the same scenario as I described above, but rather than struggling with the witness, simply recognize that the witness has a story he wants to tell and your questions are not going to get in the way, unless you use jiu jitsu and bring him under control.
I was in a trial, with a defendant on the stand, who wanted to argue every question with a narrative answer. I said, "Mr. Wrongful, there is obviously something you feel like I am not letting you say that you feel is important because you are not answering my questions. I am going to allow you to say whatever you feel you need to say to the jury. I am going to sit here, just let me know when you are finished so I can resume my examination."
I then sat down. Opposing counsel did not object, because I have just given the defendant free reign to speak. The judge perked up, looked over his reading glasses at the witness, not knowing what was going to happen, never having seen anything like this. A hush fell on the whole courtroom.
The defendant turned uncomfortably toward the jury and began to speak. You could hear a pin drop. Everyone wanted to hear how this would go. The Defendant spoke for a minute of two, said really nothing, and finally, almost apologetically said, "Mr. Young, please ask me your next question."
I wasn’t willing to let him off quite so easily yet. I asked, "Are you sure you don’t have anything else you need to say to the jury?" He assured me there was not.
I stood up and resumed my examination. If the witness wandered at all in his answer, I asked, "I’m feeling a little tension again between us, is there something else I need to let you tell the jury?"
Each time the Defendant responded, "No, no, ask me the question again." To which he provided a direct answer.
WHY DID THIS WORK?
I was being fair to my opponent. The jury recognized that. When I stated what I believed the jurors were feeling, that the Defendant was being evasive and offered to allow him to talk directly to the jury without me asking questions, he turned to face a jury that was then really irritated with him. I watched the jurors’ faces. They were not friendly and open to the Defendant. Have you ever tried to talk to a group of people who feel hostile to you? That is what the Defendant was doing. The reason he didn’t speak very long is because the jury imposed their own control on him. He knew they did like that he was not playing by the rules. They did not like that he was not answering my questions.
The jury felt like he was wasting their time.
I have had people ask me, "Aren’t you worried about what the Defendant will say? Won’t the Defendant’s uncontrolled speech kill your case?"
My answer is "No." I don’t care what he says in that situation, because the jury is not going to listen to him anyway. Everything he will say, even if Defense counsel reads this at some later time and prepares a speech for their client, it won’t matter to me. The jury will not listen to the speech, and if it is a good speech, they will know the defense attorney prepared it, and really punish the Defendant. That’s because the Defendant is not following the rules, and all I have done is highlight that for the jury.
The proof of that is what happened each time the Defendant started to relapse, and I offered another "free go" at the jury, the witness said "No." That was because he did not want to face the punishing jury again. Once was enough, he did not want to go there a second time. Instead the response to my offer became, "No, just ask your question again.
I’ll answer it."
I don’t use this tactic often, maybe less than once every 10 trials. Opposing counsel who have heard of this tactic have tried to prepare their client with an organized speech. It hasn’t worked. That’s because it is not about the speech, it’s about how the jury reacts.
A FURTHER NOTE:
On occasions where I have used this tactic in trial, I don’t leave it at witness control. In closing argument, I always comment on what happened during that cross examination. It will sound something like, "Who is it that is unafraid of the truth in this case? The Defense insisted that every witness answer their questions with only a ‘yes’ or ‘no’. When I was examining, I gave everyone the chance to explain anything they wanted. I was not afraid of any answer because the truth makes you free. In fact, remember when I was cross examining the Defendant, and he wanted to give speeches rather than answer my questions? I didn’t fight him and insist, ‘just answer yes or no.’ Instead, I sat down and said, ‘tell the jury whatever you want.’ What does that tell you about truth in this case? I didn’t care what he said. All I cared about was you getting to see him and how he acted, even when he was given free reign to say whatever he wanted. That’s because we know that you know what the truth is and who is unafraid here."
When you feel comfortable in trial, try this sometime. It will take great courage, but that is what trial is about: doing the right thing, at the right time, for the right reason.
Check back each Friday for my posting of new installments of Young On Trial.
I have published two small books to help the ordinary person with employment issues. They are for sale at Amazon.com for only 99 cents each. One is called “You’re Fired!” and the other is called “I Quit My Job!” Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.
Until next Friday, thank you for reading.