Witness Woes: How to Deal with Difficult Witnesses at Trial
The Bencher | November/December 2022
By Judge David W. Lannetti and Jennifer L. Eaton, Esquire
Cases can rise and fall on witness testimony. Hence, minimizing surprises and managing witnesses at trial can mean the difference between winning and losing a case. One way to control witnesses is to be familiar with common witness types and understand how to best deal with them. Difficult witnesses normally fall into three categories: nonresponsive, forgetful, and talkative. Each type can be detrimental to a case, but any of them can also be used to your advantage if you know how. Consider these witness types and respective techniques the next time you are forced to deal with a difficult witness, as doing so may convert a weakness of your case into a strength.
The Nonresponsive Witness
Especially in contentious litigation, it is common to encounter an evasive witness, someone who never answers a question directly. This can be because the witness is nervous or a courtroom novice, but more likely it is because the witness is intentionally trying to evade questions during cross-examination by saying as little as possible. To intentionally avoid answering your question, a witness on cross-examination may launch into a speech, respond with a canned response, answer the question only partially, or take on a victim mentality. Remember that if the other side is calling a witness, it is only because the testimony is potentially damaging to your case, so often your goal during an effective cross is to get the witness to talk.
For your witnesses, the goal is to get them comfortable and talking to the factfinder. Take them on a tour of the courthouse before your trial date, ensure they know the key points they need to get across during their testimony (keep them to a minimum!), and practice your questions and answers in advance. Reinforce that there is no need to memorize answers and that the two of you are part of the same team. Explain that you will be there during redirect to address any difficult questions that may come up during cross-examination.
For witnesses on cross, ask simple questions that demand a yes-no answer. Start with questions that the witness almost certainly will have to answer “yes.” For example, “You were working on August 1, 2020, correct?”; “And your title that day was shift supervisor, right?” If a nonresponsive witness evades even the most basic question, the factfinder will quickly recognize the witness’s lack of credibility. Be prepared during cross to tell the story you want to tell, with the witness being forced to agree with your statements by a series of “yes” answers. Be patient, stay calm, and force the witness to simply answer “yes” or “no.” And don’t be afraid to ask the judge to direct the witness to answer the question. Create a narrative where you either get the answers you want or you force the witness to provide answers that are simply unbelievable.
The Forgetful Witness
Curiously, some witnesses will forget every detail of a case—at least initially—even if they were the ones responsible for doing something, seeing something, or reporting something critical to the case. Like with the nonresponsive witness, it could be because the witness is simply nervous. But more frequently, it is because the witness is being overly cautious and is concerned that he or she will say something detrimental to his or her case. Witnesses also may be concerned that they inadvertently will say something at trial that is inconsistent with a previous statement or deposition and they therefore risk losing credibility.
As discussed above, nervousness can be addressed through familiarizing witnesses with the venue and their likely testimony in advance. Additionally, for all forgetful witnesses, it is best to be prepared with documents to refresh their recollection. Armed with documents, even if a witness remains forgetful, the factfinder will be able to be presented evidence by listening to the witness answer questions about a specific document. Like with a nonresponsive witness, it is helpful to ask a forgetful witness simple questions. If an adverse witness claims not to remember even the most basic of facts and there are no applicable documents, you may be able to use this to your advantage. Try to get repetitive “I don’t recall” responses, taking them to the point of absurdity, whereupon the credibility of the witness will be adversely affected and perhaps destroyed. You can reinforce the absurdity of the response by posing the question, “Just to be clear, you are saying…” If the witness is critical to the other side’s case, then point out—through other witnesses or in closing argument—that this important witness has little knowledge of the event in question and about what other witnesses may have seen or said.
The Talkative Witness
Some witnesses—both on direct examination and cross-examination—have a problem answering questions directly. With these witnesses, a yes-or-no question is met with a rambling response with no clear answer. It’s not that they necessarily are attempting to be evasive—especially on direct—but rather that they are simply prone to saying everything that is going through their minds. Focusing on an issue may be challenging to them. Witnesses on cross, however, may be more interested in avoiding answering your questions so that they can tell the factfinder the story they want to tell. These witnesses can be the most damaging and must be controlled as much as possible.
On cross-examination, don’t hesitate to cut off a witness who is not answering your question directly or to re-ask the question (multiple times if necessary to get an appropriate answer). Jurors dislike wasted time, and you can actually gain credibility by cutting to the chase. Being direct and precise is key. Limit your questions to those requiring “yes” or “no” responses to the extent possible. Have a witness expound only on points that are inconsistent with other witnesses’ testimony, and don’t repeat on cross questions that have already been covered on direct unless you intentionally are trying to reinforce points that are helpful to your case.
Also, don’t be locked into your outline on cross; exploit unexpected answers on direct, and always listen closely to responses for opportunities to attack credibility. When faced with a long-winded response, ask a simple clarifying question: “Is your answer to my question ‘yes’?” And when the response is not in fact responsive, say something like, “Perhaps you didn’t understand my question. All I am asking for is a simple ‘yes’ or ‘no’ answer. Let me rephrase and ask you again.”
To avoid an overly talkative witness on direct examination, the best thing to do is prepare your witness. Let your witness know upfront that straightforward questions should be met with straightforward answers. The proper answer to “Do you know what time it is?” is “yes” or “no,” not “yes, it is 12:14 p.m.” Assure them that you, as the attorney, can ask follow-up questions if needed and that it is not their job to memorize, guess, or elaborate on an answer unless asked.
Many witness issues can be avoided through preparation before trial. For example, take meticulous discovery depositions. Prepare a list of detailed statements you want to elicit from each witness before each deposition. With this preparation and implementation, deposition transcripts will provide a road map for admissions and a tool to point out prior inconsistent statements. Pre-trial is also the time to identify your case narrative or theme. As often as you can, refer back to this theme in your examination of witnesses, as in every other aspect of the trial.
The keys to dealing with difficult witnesses are to be prepared, not to panic, and to be intentional and persistent in your questioning. Do everything you can to get the factfinder to like you. Be professional, treat every witness with dignity, and do not hesitate to concede items that do not hurt your case. But ultimately, most cases hinge on witness credibility. The goal is to demonstrate that your witnesses are honest and believable and that the other side’s witnesses are avoiding your questions and hiding the truth. On direct examination, you want the factfinder to trust your witnesses and understand the issues in the case. On cross, you want the factfinder to be skeptical of what the witnesses are saying. Use witnesses to your advantage. Do not let them run the show.
Judge David W. Lannetti is a circuit court judge in Norfolk, Virginia (Virginia’s Fourth Judicial Circuit). Jennifer L. Eaton, Esquire, is a civil litigator and principal at Woods Rogers Vandeventer Black PLC. Lannetti is a past president of the James Kent American Inn of Court in Norfolk, and both he and Eaton are current executive committee members of the Kent Inn. The views advanced in this article are those of the authors alone and should not be mistaken for the official views of the Norfolk Circuit Court or Woods Rogers Vandeventer Black PLC.