Part I: The Emotional Witness
Whether it’s at an examination for discovery or at a trial, every litigator will eventually have to handle an line of questioning for a witness. Although one would hope that every witness is a cooperative one, they sometimes aren’t.
Here are a few tips to help you handle the emotional witness.
Step 1: Prepare for the waterworks
An emotional witness will likely burst into tears at some point during your line of examination. Quite frankly, there is no telling when they will begin tearing up: it could be as early as the first question, or as late as the last question. Whenever it is, be prepared for it, since it could very easily invoke emotions within you that could throw you off your line of questioning, and make you seem flustered and unprepared.
That’s not to say that you shouldn’t react at all to the emotional witness’ crying: in fact, you should react in a way that makes you seem human and understanding of this witness’ pain and suffering. This is important because it can ultimately help the examination go as fast as possible, without unnecessarily dragging it out.
Step 2: Offer a break so they can collect themselves
If you’re in the middle of an examination or trial that has been going on for hours, an emotional witness might be the best opportunity to seek a recess from the procedure. It will help the emotional witness collect their thoughts and emotions, as well as give you an opportunity to keep the line of questioning focused and on time.
Step 3: Assure the witness that the process is almost over
For the emotional witness, one of the overwhelming aspects of legal proceedings is the legal proceeding itself. Things as simple as the intimidating set-ups of courtrooms and formality of board room settings can be overwhelming for the emotional witness. This is in addition to having relive the facts that made these proceedings necessary. So, even though it might not seem very effective, an emotional witness may actually feel more at ease if they hear the person questioning them is telling them that this process will end soon. It allows the emotional witness to get into a more cooperative state, focusing on answering your questions so that they can be done with this process as soon as possible.
Step 4: Be prepared to march on
There may be other reasons as to why the emotional witness is so emotional. It could be that they are having a difficult time making ends meet, or other circumstances in their life is making it hard for them to keep their emotions in check. Your initial reaction to this might be to take some time to allow the witness to air their grievances – don’t do that!
Regardless of which side of the case you are representing, your job is to get the answers from the witness, even if the witness is your own client. Your job is not to make the witness feel better – it’s simply to help them calm down enough to give the answers needed for the proceeding to continue. Any additional answers that a witness gives (especially if it relates to unrelated matters) can have bad consequences for your case, especially if a judge views it as a deliberate time-wasting tactic.
Bonus: What if I suspect the witness is being intentionally emotional?
Emotional witnesses may invoke sympathy from judges or juries. If you suspect that a witness is being intentionally emotional in order to invoke sympathy, you should consider taking two very carefully timed and planned steps:
- Allow the witness a few moments to collect themselves (as described above)
- Prepare to counter the witness with a fact/evidence that is unfavourable to them.
The first step allows you, as the cross-examining counsel, to use the emotional witness to your advantage, making you seem appropriately sympathetic and understanding of the witness’ emotional state. Skipping this step might make you seem unnecessarily harsh, even if you are ultimately correct in proving the witness is being intentionally emotional. The second step allows you to cut through the emotional state that the witness has established and paint your own picture of the case. Perhaps this would be the best opportunity to show that the emotional witness (who might have been emotional due to a feeling of victimhood), is not so innocent themselves. Even the mere suggestion that the emotional witness was being unnecessarily emotional can negate any sympathy that a judge or jury had for the emotional witness.
Mastering the timing of these two steps is an art, but doing so can make you a very effective litigator!