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Treating runaway witnesses with persuasive compassion

Sep 25, 2012 Treating runaway witnesses with persuasive compassion

If I focus on everyone as being interconnected, will that blunt my fighting power in and out of court? On the one hand, by seeing everyone and everything as interconnected, we are more mindful before inflicting unintended and intended damage on others. Such an approach should reduce all the violence we see in the world. On the other hand, particularly when I see myself as being on the side of the angels — which is the case with criminal defense and defending the First Amendment (which sums up 99% of my law practice) — my approach is to harmonize my client’s imbalanced situation with readiness to inflict damage on the opponent if necessary in the process. None other than television’s Kung Fu underlines the foregoing approach to trial battle, through Master Kan: "Perceive the way of nature and no force of man can harm you. Do not meet a wave head on: avoid it. You do not have to stop force: it is easier to redirect it. Learn more ways to preserve rather than destroy. Avoid rather than check. Check rather than hurt. Hurt rather than maim. Maim rather than kill. For all life is precious nor can any be replaced." (Emphasis added).

For me, approaching everyone and everything as being interconnected strengthens me as a person and trial lawyer, makes me feel less threatened by outside forces (which are not completely outside, since everything is interconnected), and makes me more persuasive when I am able to speak with compassion and empathy rather than with a level of disdain and hatred towards opposing witnesses and opposing lawyers that can quickly turn off the very judges and jurors (and prosecutors, when negotiating settlements and procedural points) whom I am trying to persuade.

How to deal, then, with opposing witnesses during cross-examination when they act like runaway — and sometimes underhanded — trains? Such witnesses can be better de-fanged, neutralized, and turned around for my side’s advantage by treating them — as everyone — with compassion, empathy, intuition and insight. No matter how dastardly the opposing witness comes across, s/he is motivated first and foremost by his or her feelings, including fear, anger, joy, exhilaration, discomfort and the list goes on.

Who on earth enjoys being cross-examined on the witness stand? Certainly, in violent warfare, no soldier would want to stand in the middle of the battlefield flashing bells and whistles for the opponents to fire at the soldier. The cross-examined witness is exposed, being fired at with questions and unable to fire back in any way other than with his or her answers to questions.

I advise my own witnesses to be as kind and focused with opposing cross-examining lawyers as they are with me on the witness stand. So much more easily said than done. My side’s witnesses do not need to see me as a threat. How can they not see the opposing lawyer as a threat to their comfort, their reputation and self-respect, and (for my clients) their liberty?

Strong is the inclination for many witnesses to lie, exaggerate, minimize, avoid, obscure and do anything else but follow the cross-examined witness’s oath to tell the truth and answer the question posed (nothing more nor less). That is the defense mechanism of a huge percentage of humans outside the courthouse. How can we expect to re-wire their brains at the drop of a dime when they walk into a courtroom?

Lawyers can spend dozens of hours at the best continuing legal education programs — even such premier programs as the National Criminal Defense College’s Trial Practice Institute and the Trial Lawyers College (both of which I attended for a total of six weeks) which simulate real trial courtroom conditions — but nothing prepares the lawyer for difficult opposing witnesses like real courtroom settings, dealing with bows and arrows from the opposing witness, the opposing lawyer objecting that the cross-examining lawyer is badgering or arguing with the witness or is repeating the same question, and the judge who sustains the opposing lawyer’s objections for baseless evidentiary and legal reasons. That is what violent conventional and guerrilla warfare is about all the more, where not even a referee is in place; at least trials have referee-judges, no matter how justly or wisely they do or do not rule. I would imagine that violent warfare veterans will have all the thicker skins in weathering such courtroom challenges, aside from any flashbacks to experiencing people being wounded and killed on the battlefield.

Imagine what it is like for a police officer to try to switch gears from the tremendous power s/he wields on the street to being but another witness on the stand in the courtroom, where the officer’s gun must remain holstered and where the officer’s power of arrest for the moment is meaningless. That officer like most other witnesses are fishes out of water, no matter how many times they have testified.

With opposing witnesses, the following are critical to keep in mind:

– Once you catch the fish in cross-examination, bag it and do not play with it. (Thanks to Terry McCarthy for that analogy.) In other words, once you make your persuasive point, move on to your next part of cross-examination, and sit down once finished with the points you know should be covered.

– Beware throwing feces at the opposing witness, lest the opposing witness turns on a proverbial fan that spreads feces right back into your face and on your clothes. (Thanks to the great Roger Dodd and Larry Pozner for that necessarily disgusting image.)

– Relevant to the foregoing feces/fan scenario, rarely will just one, two or three questions proverbially kill the opposing witness or carry the day. Larry Pozner has analogized effective cross examination as offering the opposing witness to sit on a new thumbtack with each question. Sitting on the thumbtack is uncomfortable, but less uncomfortable than the witness’s being punished with multiple questions to get a direct answer to the one question that could have been answered with one simple answer. Watch out, of course, for the judge who steps in and says for the punishing  cross-examiner to move it along, but even the least understanding and least fair judge will get impatient with the witness who repeatedly slows things down by evading even the most simple of questions.

– With the foregoing thumbtack approach, by the end of the cross examination, the effective cross-examiner may have stuck so many thumbtacks into the opposing witness as to be the equivalent of a dagger, when no witness will be willing to sit on a dagger versus on sequentially-applied thumbtacks.

– Rarely seek judicial assistance in dealing with a runaway witness. That can weaken the cross-examining lawyer’s perceived authority, credibility, and control of the witness, and does not look good before a jury. However, if an opposing witness is trying to slip in all sorts of damning testimony in cross-examination that was forbidden during direct examination, that is the time to approach the judge outside of the jury’s hearing and to get a resolution that stops such underhanded opposing witness efforts.

In a recent drunk driving trial, I cross-examined a twenty-five-year veteran of the police force. The officer several times started answering my questions before they were finished, often mis-anticipating where my questions were going. Instead of my insisting that the officer not interrupt my questions, I instead said: "I was not finished with my question." The officer backed down finally. A few times, the officer answered a question different from the simple one I had posed, sometimes mis-anticipating where my line of questions were going. I simply told the witness: "I was actually asking… [then I repeated the question]." The officer backed down finally and answered my question.

The officer seemed to realize that the entire cross-examination ordeal would be less unpleasant if she stopped resisting my questions. It is imperfectly akin to the Chinese handcuffs. If you vigorously try to pull out of them, they will tighten around your fingers and become more uncomfortable. If you relax your mind, body and fingers, you can gently get out of them.

When I use compassion and empathy with opposing witnesses, even the most underhanded-seeming ones, their guard is lowered with me because even if they see me as a threat, they see me as an honest rather than dishonest threat, and the judge and jurors are more receptive to my arguments. That is the essence of persuasion. 

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