McElhaney on Litigation
Why witnesses do it, and how to make them stop
Posted Mar 1, 2010 4:10 AM CDT
By Jim McElhaney
Evasive witnesses are one of the problems lawyers complained about most in a recent survey by the local bar association. So that was the topic of Tuesday evening’s legal education program.
Judge Standwell drew the short straw, so it was his turn to be the first speaker. Exactly at 7:30, he stood up and said, “Let me start with a question. Angus, why do lawyers find evasion so nettlesome? You would think it would be only a minor annoyance.”
Angus stood up, smiled and said, “Folks, now you know why Horatio Standwell is a United States district court judge—and why he’s the perfect one to start this program. Ever since he was first admitted to practice, he has shown a remarkable talent for evasion of all sorts —which he just demonstrated by passing the buck to me.”
When the laughter died down, Judge Standwell said, “I should have known I couldn’t beat Angus at his own game, so I’ll start, and then we’ll go back and forth like we planned.
“First,” said the judge, “witnesses typically give evasive answers because they have taken sides in the dispute and don’t want to hurt ‘their case.’ Usually that means they evade on cross-examination and not on direct—but that’s not always the case. When you suddenly find that a witness has turned against you on direct, it’s time to approach the bench and ask the judge to declare the witness hostile so you can continue as if you were on cross.”
“Has that ever happened to you?” said Angus.
“It happened when I was a prosecutor,” said Standwell. “As it turned out, the defense lawyer had actually bribed one of the government’s witnesses to change his testimony in the middle of the trial.”
“Another reason for evasion,” said Angus, “is that dodging the question seems more comfortable and less risky than an outright lie. But when you think about it, evading a question that calls for honest, helpful information can be just as destructive to the cause of justice as a lie.”
“And sometimes there are witnesses who are evasive because they don’t understand the question,” said Standwell. “They would rather dodge the question than look stupid. And the blame for that kind of evasion lies with the lawyers who haven’t learned how to ask simple, understandable questions.”
“But actual lies are probably the most common evasive answer on cross-examination,” said Angus. “The witness claims he doesn’t know the answer to the question because he wants to hurt your case.”
“Then there’s what I call expert evasion,” said Judge Standwell. “It’s when an expert witness gets recognized by the court and is permitted to give opinions about the meaning of some scientific, medical or economic evidence in the case.
“The expert’s job is to help the judge and jury understand information beyond the average person’s educational background and experience. And some experts do a wonderful job of making complicated information easy to understand.”
“But,” said Angus, “typi-cally on cross-exam these bright and engaging doctors, scientists and economists somehow seem to change.”
“Exactly,” said the judge. “They have been given the power of evasion through the magic of bafflegab.”
“I saw a perfect example of this 10 or 15 years ago in Santa Fe,” said Angus. “I was in Simon Winslow’s court, waiting to take him to lunch. The expert was a leading neurologist who did a brilliant job of making the plaintiff’s post-traumatic brain injury come alive. You could see jurors unconsciously touch the left sides of their heads. They were wondering what it would feel like if scars on their brains suddenly irritated the otherwise normal brain cells next to them, causing an uncontrollable twitching in their right arms and legs.
“Then came cross-examination. But instead of asking for a short recess—to let some of the magic drain out of the room—the defense lawyer jumped right into the tests that had not been done by the doctor in reaching his diagnosis.
“His first question was, ‘Doctor, did you perform a spinal tap on Mrs. Keifer in diagnosing her condition?’
“Instead of answering yes or no, the doctor said, in a snotty tone of voice, ‘Counselor, you should understand that the medical procedure you are referring to—which is more properly denoted a “lumbar puncture”—is a dangerously invasive procedure that runs the distinct risk of a fatal herniation of the brain stem being pushed through the base of the skull, as well as risking a debilitating infection of the spinal cord. Furthermore, it is both expensive and very painful.’ ”
“Wow,” said Standwell. “How did the lawyer respond to that?”
“I’ll tell you in a moment,” said Angus. “But first, you can see how this answer could easily get the cross-examiner mired in a discussion in which he lost total control of where things were going.
“But in this case, the lawyer said, ‘Excuse me, doctor, but a spinal tap would have shown whether there was blood in Mrs. Keifer’s spinal fluid. True?’
“ ‘Possibly,’ said the doctor.
“ ‘Most likely caused by trauma to the brain?’ said the lawyer.
“ ‘Correct,’ said the doctor.
“ ‘But the absence of blood in her spinal fluid would suggest that her brain abnormality was actually caused by a tumor or some other cause instead of bumping her head on the door as she got on the city bus?’
“ ‘Possibly,’ said the doctor.
“ ‘So what you actually know, doctor, is that Mrs. Keifer has a serious neurological problem. True?’
“ ‘Yes,’ said the doctor.
“ ‘And you have an opinion, but don’t actually know what caused it. True?’
“The doctor actually said, ‘I suppose so,’ ” said Angus.
“Expert witnesses will try to use complex opinions and confusing jargon to help them evade your cross-examination questions. But don’t let that throw you. You get to ask the questions—not the witness.”
HELP THE WITNESS REMEMBER
“Finally,” said Judge Standwell, “I think it’s easier —and more comfortable—for witnesses to evade questions in depositions than in trial. And some lawyers virtually tell their witness not to answer the question by saying, ‘Objection. If he knows.’ It’s like a verbal jab in the ribs. What can you do when the witness looks at you, smiles and says, ‘I’m sorry, I don’t know’?”
“I’m glad you asked,” said Angus. “Time is almost up, but I’ve got a handout that I want you to bring to every deposition from now on. Whenever you think the witness is lying when he says ‘I don’t know,’ make him answer every one of these questions.”
“When the witness claims he doesn’t know or can’t remember” was the heading at the top of the handout, followed by these questions:
• Did you once know the answer to my question?
• Who did you tell?
• Who might you have talked to about this?
• Where would it be?
• What other documents might have this information?
• Where would they be?
• What have you heard about this matter?
• Where did you hear it?
• Who might know where to find this information?
• Where would they be?
• If your life depended on finding this information tomorrow morning, where would you look?
• If your life and your family’s lives actually depended on getting the answer to this question tomorrow morning, who would you ask?
• Do you understand that if you find the answer to this question or remember what it is, you should promptly bring it to our attention?
• And do you agree to do that?
“These last two questions are important whether or not the witness is a party and is under a legal obligation to update you,” said Angus. “Not only do these questions make it uncomfortable for the witness to ‘forget,’ but they often produce useful answers that will lead you to the information you’re after.”
Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.