Litigation

Cross Examination: Controlling the Difficult Witness

If a witness tries to avoid a question, the lawyer needs to be persistence and insist on an answer.


If a witness tries to avoid a question, the lawyer needs to be persistence and insist on an answer.

Lawyers will experience witnesses who do not respond to questions. Instead of answering the questions they may evade the question or provide their own commentary that does not answer the question. If the lawyer stops the witness and says, “just say yes or no”, or asks the Judge to intervene, the lawyer may risk losing face. By responding in that manner, it may appear that the lawyer is acting unfairly, or that the lawyer has lost control over the cross-examination. The preferred manner of responding is to keep insisting on an answer. This approach can be more effective if you say the question slower, with a louder voice. Other tactics that are recommended, for the evasive witness, include asking the court reporter to playback the question, and repeating the question, and suggesting that it was no answered.

There will inevitably be some loss of control over the evasive witness. However, the lawyer will want tactics that keep the cross-examination in the direction being pursued by the lawyer, without the lawyer appearing to be overbearing or unfair. The tactics referred to above can achieve this result and would more likely leaving the witness as the one who has lost credibility by being evasive.

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