Litigation

Cross Examination: What to do when the Witness is Asking the Questions

If a witness tries to turn the table on the lawyer, the lawyer needs to keep control of the cross-examination.


If a witness tries to turn the table on the lawyer, the lawyer needs to keep control of the cross-examination.

Normally, in cross-examination, it is the lawyer who is asking the questions. Occasionally the lawyer will face a situation where they are being asked to answer a question. There is nothing inappropriate with a witness asking a question to clarify the meaning of a word or a question. A question to a lawyer, from a witness, becomes controversial when it is framed in a manner of an attack on the lawyer or an attempt to debate the merits of the case with the lawyer. If the lawyer’s questions are framed properly, as leading questions bringing out one fact at a time and not arguments, then such a reply would not be expected. Nevertheless, the witness through design or frustration may still respond in a manner that is both argumentative and non-responsive to the question. In such a case it is important for the lawyer to have a strategy to deal with this situation.

One simple method to deal with the situation is to indicate that the lawyer is the one who asks the questions, and the witness is the one who answers the questions under the laws of evidence. The lawyer can add that any answers would be in his final submissions. This approach preferable as it allows the lawyer to avoid a loss of control that occurs when the cross-examination degenerates into a debate. It also avoids disruption and loss of control that results if you were to ask the Judge to intervene. Another benefit is that it allows the lawyer more time to consider any reply when the question is eventually addressed in final submissions. If the witness is being particularly difficult it may be appropriate to be firm with them and suggest that you are the one that asks the questions.

It is generally never advisable to answer an argumentative question from a witness. The cross-examination then becomes a debate and the witness will gain an advantage. It is better not to answer these types of questions, at least until your closing argument. With the use of a few tactics, referred to above, the lawyer can maintain control of the witness, and not allow the witness to take over the cross-examination.

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