Handling Difficult Witnesses in Personal
Injury Cases: Direct and Cross ExaminationsTips for Managing Hostile, Evasive, Untruthful, Forgetful and Other Challenging Witnesses
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MONDAY, NOVEMBER 19, 2018
Presenting a live 90-minute webinar with interactive Q&A
Thomas C. O'Brien, Senior Counsel, Miller Canfield Paddock and Stone, Ann Arbor, Mich.
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Handling Difficult Witnesses in Personal Injury
Cases: Direct and Cross Examinations
Monday, November 19, 2018
1:00pm-2:30pm EST, 10:00am-1130am PST
Presentation Thomas C. O’Brien
Miller, Canfield, Paddock and Stone, P.L.C.
101 North Main Street, Seventh Floor
Ann Arbor, Michigan 48104
Strafford
I. INTRODUCTION
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Introduction
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Types of witnesses
• First Responders
• Police
• Eye Witnesses
• Hospital Personnel
• Nursing home personnel
• Outpatient rehab
• Employer of injured person
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• Family
• Friends
• Accident reconstruction
Experts
• Bio Dynamics Experts
• Financial experts
• Medical experts
• Vocational experts
Witness characteristics
• Anxious
• Age
• Bias
• Dissembling
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II. SHOULD I EXAMINE
THE WITNESS?
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Should I examine the witness?
• Legal theory
• Factual theory
• Community Values
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Should I examine the witness?
• Does witness provide
testimony not available
from any other source?
• Discretionary exams – a
risk / reward analysis
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III. PREPARE FOR THE
WITNESS STAND
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Tools to control the difficult witness
• A statement covering
the relevant facts
• Knowing how to use
the statement
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Witness statements
• Depositions
• Evidentiary hearings
• Interview statements
• Writings
• Speeches
• Social media
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IV. THE FORGETFUL
WITNESS
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The forgetful witness
• Common
• Anxiety can impeded memory
• So can the passage of time
• Usually witnesses are not
trying to be difficult, they are
just nervous
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The forgetful witness
• Feigning lack of memory can
be perjury
• Will deal with this when we
come to lying witness
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The forgetful witness
• Anything can be used to
refresh recollection
• Kipling, the Tennessee Waltz,
hickory smoke, a swatch of
corduroy, chocolate soda,
faded snapshot
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Refresh a witness’ memory
• FRE 611 – Leading questions are
permitted “as necessary to develop
the witnesses testimony”
• Use a memory jogger, usually this
is a statement
Only attempt to refresh memory of a friendly
witness / Extract admissions from difficult
witnesses
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Refresh a witness’ memory
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• Concepts of refreshing recollection and past
recollection recorded are often confused
• FRE 803 (5) provides the foundation for recorded
recollection
• A matter the witness once knew about but cannot
recall
• Made or adopted by the witnesses when the matter
was fresh in memory
• Accurately reflects the witnesses knowledge
Note: If admitted the record may be read into
evidence but is received as an exhibit only if offered
by the adverse party.
What if memory is not refreshed: Past recollection recorded
The difficult witness
• Prior statements of a party are
substantive evidence – FRE 801
(d)(2)
• Prior statements of a witness under
the federal rules are substantive
evidence – FRE 801(d)(1)(A)
Extract admissions, do not refresh
recollection
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V. CONTROL
TECHNIQUES: CROSS-
EXAMINATION
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Control techniques: cross-examination
Theory of the case
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Control techniques: cross-examination
Cross is a way to display
information
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Control techniques: cross-examination
Storyline theory of cross
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Control techniques: cross-examination
Leading questions on a 1 to
10 scale
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Control techniques: cross-examination
Know the answer
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Control techniques: cross-examination
Start strong
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Control techniques: cross-examination
Short phrases
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Control techniques: cross-examination
One information point per
assertion
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Control techniques: cross-examination
Stay with facts when you
can
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Control techniques: cross-examination
Avoid loaded words
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Control techniques: cross-examination
Plain English
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Control techniques: cross-examination
Track language of prior
statements precisely
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Control techniques: cross-examination
Drop connectives: “isn’t it
true”, “isn’t it correct”
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Control techniques: cross-examination
Do not echo
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Control techniques: cross-examination
Insist on an answer but do
not quibble
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Control techniques: cross-examination
Listen closely to the answer
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Control techniques: cross-examination
Techniques of control when the answer
is not responsive:
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• Repeat the question exactly
• Hand signals
• Characterize the answer, “that was a yes?”
• Avoid the bargain
• Only ask for the judge’s help as the last
resort
Control techniques: cross-examination
One question too
many. Trying to extract the
ultimate conclusion
41
Control techniques: cross-examination
End with your best point
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Control techniques: cross-examination
Avoid a timid ending
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VI. LAWYER DEMEANOR
Lawyer demeanor
Do not become:
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• Hyper-aggressive
• Raising your voice
• Badgering the witness
• Talking fast
• Interrupting the witness
• Snarling
• Pacing
• Activing dismissive
Lawyer demeanor
Do:
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• Stay calm
• Professional
• Follow your plan
• Be patient