Does Your Witness Knows How to Survive A Brutal Cross-Examination?

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If we have a good case, and the opposition cannot be convinced of that, then we do have to go to trial, and we have to have our people testify in a way that makes them practically immune to effective cross-examination.

How you go about doing that is the lesson of this tutorial.

People come in all varieties of personality. The most scrupulously honest person may be the most boring, confused, frightened individual who, though he would only tell the truth, would tell it so badly that his testimony is worthless or worse.

Among the sentiments at work in the mind of a potential witness are, in addition to an inclination to truthfulness, fear of being embarrassed; for embarrassing others and his company; for not being able to provide affirmative support for his side of the case; for his position in the company should he be seen not to have been helpful; for his financial future; for his references, promotions; for his being included in significant projects; for his dignity; for his family; for his masculinity; for ... the list could go on and on.

  • Is he boring?
  • Is he a smartass?
  • Does he have nervous tics that can be interpreted adversely?
  • Does he get quickly to the point or wander around it forever?
  • Is he into self-justification?
  • Is he ostentatiously religious?
  • Does he have his own agenda?
  • Is he intelligent?
  • What are his language skills?
  • What are his reasoning skills?
  • Does he try too hard to please, either you or, when the time comes, opposing counsel?
  • Will your time spent trying to help him be simply truthful be seen as an inappropriate attempt to coach your client's agenda?

Does he fear you are trying to make him someone other than who he really is, and that he won't be able to do it the way you want.

If the witness is the high panjandrum who is always treated with deference to an extreme -- used to having his own way - there is another cart full of baggage to be accounted for.

All these and many more fears and attitudes are strongly present in the mind of a potential witness. They will have a physical effect upon him. They must be recognized and addressed in an effective relationship-building manner, so that in the end you have built confidence and trust, not fear and loathing.

The central goal of all you do to prepare a witness to testify has to be to show him how to tell the truth in a way that is obviously truthful. One by one you must help him overcome each of his fears and each of his adverse tendencies. You must spend time with a witness. You must show him how to do his homework.

And you must do it before he testifies in his first deposition, as changes in testimony later on may be used to impeach credibility, comparisons of his trial statements against his prior, seemingly or actual, inconsistent statements. It is not an issue of rote memorization. That is almost as bad as ineptitude. The goal is that he knows what the truth is and how best he can state it with the least fear of confusion or of being ambushed on cross-examination.

In my experience, even if they superficially portray an air of modest pliability, just beneath the surface is a thick layer of 'How dare you?' With this person the relationship building is tougher, because he can fire you and find a 'real' lawyer who appreciates who this person really is and how he is to be treated.

His ego is engaged far more than any other witness in the company. He expects to appear for a deposition and at trial and have the judge, jury and opposing counsel rise when he enters the room, and that he will be able to control the questioning, not the lawyers or the judge. If you have never seen such a person on the witness stand, you have missed a spectacle.

When his side loses, his analysis is that the company's lawyer would have won if he had just 'put me back up on the stand'. Yeah right!

  

Tamerlane group's purpose is to prevent you from shooting yourself in the foot when you see a bad event threaten to develop. Our focused expertise in crisis management can prevent these situations from developing if we are called before someone makes self-humiliating public statements/files absurd lawsuits. 

(Here is Part 1. This is Part 2 of 6 on How to Win Franchise Trials.  Here is Part 3)

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2 Comments

Franchisors in preparing for their witnesses have a daunting and scary task.

The operations, marketing, franchise sales and training team members may know their jobs, but can become overwhelmed when they have to explain themselves in a deposition or in court.

Joe, I agree.

And Richard is also right: those used to deference within the franchise system may come undone in litigation.

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About this Entry

This page contains a single entry by Richard Solomon published on August 11, 2013 5:15 PM.

Does Your Franchise Attorney Make This Mistake When Drafting Your FDD? was the previous entry in this blog.

Franchisees In California Concede Defeat, For Now. is the next entry in this blog.

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