Part II: The Angry/Adverse Witness
Welcome back! In part I of this blog series, we discussed how to handle 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 angry/adverse witness.
First Things First: Adverse vs Hostile Witnesses
You may have heard the term “hostile witness” before. Before you read any further, take a minute to understand the difference between the terms “adverse” and “hostile”.
Adverse Witness: A witness who is providing an inconsistent statement on a material fact
Hostile Witness: A witness who is providing false testimony or is advancing a falsehood, under oath
Although it might not seem like there is a big difference, the implications are significant. In a trial setting, proving a witness as being adverse allows you to conduct a cross-examination on the specific material fact where there is an inconsistent statement – essentially, it allows for a partial cross-examination. However, proving a witness as being a hostile witness allows for a cross-examination on any statement that has been made in the past, whether it was made at trial or pre-trial proceedings.
Understandably, the requirements for proving a witness hostile are more onerous, since the implications are greater. We will discuss these requirements at another time!
1) Ask yourself: why are they getting angry?
The first step in understanding how to deal with an angry or adverse witness is understanding the reason behind their reactions. It could be that the witness does not like the implications being made by some of the questions (this is especially true if you are cross-examining them with leading questions). It also could be that they are intentionally trying to hide something, and are getting angry that you are fishing for answers. It could even be a combination of both; but the important thing is to understand the reason behind the witness’ angry/adverse reaction.
As we said above, an adverse witness is being suspected of providing an inconsistent statement on a material fact. The mere allegation of this may be enough to get an angry reaction from the witness, so it’s important to be prepared for that reaction.
2) Prepare to be as friendly as possible
This is undoubtedly the most difficult step, since it likely means you will have to put aside your desire to respond to some of the witness’ angry remarks. Some of these remarks could be re-iterations of claims that you suspect or know are false, or in extreme cases, attacks on your character as a person. Whatever the circumstances, you should be prepared to be friendly, calm and collected. It’s also good practice to know at what point you will feel it’s necessary to ask the witness to stop reacting in such a difficult way, especially if it’s done in a firm and polite manner. The last thing you want as counsel is for your own reaction to this witness to be a distraction to the legal proceeding.
For example, if a witness is getting angry about the allegation of providing an inconsistent statement on a material fact, you could respond by saying “I’m simply trying to understand what you meant when you said this…”, and follow that up with some of the questions you had. Reacting in this manner will allow you to seem like you are in control of this proceeding, and show a very high level of professionalism to your colleagues and the judge.
3) Ask ALL your questions
One of the most unsavoury parts of being a lawyer is asking questions that may be inappropriate to ask. However, as counsel, it’s your job to ask each and every question possible in order to uncover all the relevant facts, and to fulfill your professional obligation of due diligence.
This is a very difficult task to do when there is a lot of resistance from the witness. Yet, no matter how uncomfortable you are asking certain questions, you have to ask them if they are relevant. So be prepared to push through all your questions – especially so that they are on the record.
4) Keep an eye out for opposing counsel’s objections
There is a line from the opening episode of the hit TV series, “Suits” that describes cross-examinations perfectly. “You keep pressing till it hurts, then you know where to look”.
The biggest indicator that you’re on the right track with your line of questioning is when your opposing counsel has to constantly stand up and defend his client from the current line of questioning. When dealing with an adverse witness, this is especially true if the opposing counsel feels that the defensive stance of the witness is not being effective in keeping you at bay. So, despite your intense focus on the adverse witness, keep an attentive ear to the opposing counsel’s objections, especially the type of objections they make, and the frequency of those objections.
Tune in next week for our last post about handling the hostile witness!