The Obstinate Witness
Every
trial
lawyer encounters
them
–
the
witness
who
refuses
to
agree
with
even
the
most
obvious
point.
Show
them
a
photo
of
their
car,
and
they
claim
they
cannot
recognize
it.
Confront
them
with
a
prior
statement,
and
they
insist
it
is
inaccurate.
This
is
a
strategy
to
frustrate
you,
to
block
you,
and to control
the
narrative.
How
do
jurors
react?
They
see
someone
trying
to
hide
something.
Use
this
behavior
to
your
advantage,
showing
the
witness
lacks credibility.
Understanding the Obstinate Witness
The
obstinate
witness
disputes
reality,
argues
every
question, avoids
“yes”
answers,
uses
speeches,
and
controls
the
exchange.
They
behave
this
way
out
of
fear
of
conceding
even
minor
points,
they’ve
been
coached
this
way,
or
that’s
their
personality.
What
they
misunderstand,
though,
is
that
jurors
dislike
evasiveness.
They
want
fairness
and
truth. If
a witness denies
the
sun
is
out,
the
jury
sees
they’re
lying.
It
is
our
job
to
couch
these
refusals
as
dishonesty
without
bullying
or
appearing
petty.
Questioning
the
Obstinate
Witness
An
obstinate
witness
prevails
when
you
are
unprepared.
If
you
cannot
impeach
or
pin
them
down,
they
escape.
Know
the
records,
statements,
deposition
transcripts, and the
facts
–
anything
to
confront
them
when
they
deny
an
obvious
point
or
fact.
Start
your
questioning
with
something
they
cannot
disagree
with,
so
that
if
they
do,
they
look
foolish.
“The
accident
happened
on
X.”
“The
accident
occurred
at
Y.”
Tie your
questions
to
tangible
anchors.
Ask
questions
supported
by
photos,
diagrams,
maps,
videos,
calendars,
medical
records,
receipts,
e-mails,
and
correspondence.
These
force
the
witness
to
act
absurdly
if
they
deny
your
questions.
Script
your
questions
so
you
start
with
undeniable
truths,
and
ask
as
many
of
those
as
possible,
before
moving
to
disputed
facts.
If
they
fight
you on the
undisputed
questions,
they
come
across
as
liars
when
they
fight
you on items
that
are actually
in dispute.
There
are
different
techniques
to
question
the
obstinate
witness:
The Step-Ladder approach.
Start
with
trivial,
undeniable
truths.
Move
to
slightly
more
meaningful
points.
Finally,
approach
the
contested
issue.
Refusals
along
the
way
show
dishonesty
before
you
even
reach
the
heart
of
the
case.
The
Boxing-In
approach.
Ask
questions
so
each
answer
narrows
options.
When
the
witness
denies
the
question,
repeat
the
same
question
verbatim.
Continue
this
process
until
jurors
see
the
dodging.
Repeat
and
Stay
Quiet
approach. Repeat
the
same
short
questions
word
for
word.
After
refusal,
pause.
The
silence
highlights
the
evasion.
One
Fact
approach. Reduce
each
question
to
only
one
fact.
No
adverbs,
adjectives,
or
conclusions. Just
nouns
and
verbs.
Make
them
admit
or
deny
that
single
point.
Questioning
an
obstinate
witness
takes
on
a
rhythm.
Use
short,
crisp,
repetitive
questions.
No
editorializing.
Let
refusals
accumulate
in
the
jurors’
minds.
Frame
questions
that
jurors
can
answer
themselves.
They
become
participants.
When
the
witness
refuses,
jurors
know
who
is
wrong.
Loop
their
words. Use
their
denial
to
create
the
next
question.
“You
deny
this
is
a
stop
sign?”
“Yes.”
“So,
you
are
testifying
that
stop
signs
don’t
exist?”
Use
objective
evidence.
Use
a
photo,
for
example,
to
ask
questions
that
the
photo
answers.
“This
is
a
photograph?”
“Of
your
car?”
“It
shows
the
rear
bumper?”
“The
bumper
is
not
crushed?”
“The
bumper
is
not
dented?”
“The
taillights
are
intact?”
If
they
deny
any
of
these
questions,
the
jury
sees
the
absurdity.
Handling
narratives
and
arguments.
When
the
witness
is
pontificating,
interrupt
gently
but
firmly.
“That
is
not
my
question.”
Repeat
the
question
exactly.
Their
evasiveness
will
not
go
unnoticed.
If
need
be,
seek
judicial
intervention.
Cadence.
Develop
a
cadence
with
short,
declarative
statements
that
invite
“yes”
answers.
Checklist
for
cross-examination
of
the
obstinate
witness:
• Review
all
prior
testimony.
• Identify
20
obvious
entry
questions
to
start
various
lines
of
questioning.
• Script
ladders
of
questions
for
each
of
these
lines
of
questioning.
• Prepare
exhibits
to
lock
in
the
witness.
• Start
with
the
most
obvious
questions.
• Use
rhythm
and
cadence
to
your
advantage.
• Use
short
questions
that
are
declarative
statements.
• Repeat
verbatim
when
the
witness
denies
an
obvious
question
that
deserves
an
affirmative
response.
• Strategically
use
silence.
• Impeach
only
when
necessary.
The
obstinate
witness
may
be
a
blessing
in
disguise.
A
witness
only
has
their
credibility
and
likability.
The
obstinate
witness
comes
across
neither
as
likable
nor
believable.
If
you
can
exploit
their
obstinacy,
you’ve
left
their
testimony
in
tatters.
Frank
Ramos
is
a
partner
at
Goldberg
Segalla
in
Miami,
where
he
practices
commercial
litigation,
products,
and
catastrophic
personal
injury. You
can
follow
him
on LinkedIn.