by Elliott Wilcox
Have you ever cross-examined a witness who simply refuses to directly answer any of your questions? For trial lawyers, one of the most difficult cross-examination situations you'll encounter is the argumentative witness. When you're cross-examining the argumentative witness, it seems like he disagrees with every question that you ask. But maybe the problem lies with you, the cross-examining trial lawyer, rather than the witness! In this trial advocacy article, you'll learn why you may be losing control of the witness because of poorly worded cross-exam questions.
Everyone in the courthouse came out to watch. Attorneys rescheduled their meetings with clients, paralegals left the office early, and several judges cancelled their afternoon dockets.
Roger "The Dodger" Lipton was going to testify.
In his twelve years as an expert witness, "The Dodger" had never answered a question on cross-examination. Not a single one. He had ducked, bobbed, and weaved his way through every cross-examination. He quibbled with cross-examiners, feigned confusion, and argued over the definition of terms.
Attorneys who had cross-examined "The Dodger" said it was like trying to nail Jell-O to a wall.
"The Dodger" was a legend in the courthouse. No one really knew what his area of expertise was. Testifying had been his sole source of income for the past five years. Despite a complete lack of credentials, attorneys hired him anyway. The sheer pleasure they experienced while watching their opponent's blood pressure rise was enough to make "The Dodger" worth his fee.
Today was a special day. He was testifying in his 100th consecutive trial. Everyone who had ever seen "The Dodger" in action wanted to be there.
And who was to be sacrificed at the altar of obfuscation on this momentous occasion?
Timmy Smithers, attorney at law.
Exactly. Hardly anyone seated in the courtroom knew Timmy, either. He was a brand new attorney. He had taken the bar only a few months earlier. Word around the courthouse was that this would be his first trial. There was no doubt - "The Dodger's" streak would remain unbroken.
That's why nobody anticipated what happened halfway through Timmy's cross-examination.
Timmy asked a question... and "The Dodger" answered.
The entire courtroom gasped as one. As hard as he had tried, there simply hadn't been any room for "The Dodger" to evade Timmy's question. The streak had been broken. Broken by this tenderfoot of an attorney. How had Timmy pulled off this miracle?
Timmy eliminated the quibble words.
When cross-examiners ask questions containing quibble words, they provide witnesses with easy escape routes. Quibble words color the testimony, ask for opinions, or taint answers to favor the questioner's position. Although quibble words can take any grammatical form, they are typically modifiers, such as adverbs or adjectives. Here are some examples of questions asked with quibble words:
- "You went to the store quickly, didn't you?"
- "You hit the man with a stick repeatedly, correct?"
- "Mr. Uhmlaht hated you a lot, didn't he?"
Each of the highlighted words modifies the witness's response to favor the attorney's case. They color the testimony. And they'll become the bones of contention when the witness answers the question.
The most common quibble words are adverbs, so let's focus our attention there. Take out the rough draft of your cross-examination questions. (You do have a rough draft of the subjects you want to cover and the questions you want to ask, right?) Let's review the language. Uncap your favorite red pen, and start hunting for the adverbs. Every time you encounter one, strike it from the page. These are the words that cause the most contention between the questioner and the witness. Every time an evasive witness hears an adverb, he gets the opportunity to argue with the questioner.
Here is what goes through the evasive witness's mind when he hears a quibble word:
Cross-examiner:You went to the store quickly, didn't you?
Witness (thinking to himself):Well, I guess that would depend upon what he means by "quickly." Sure, I went to the store, but I don't know if I went "quickly." I'm not nearly as fast as any of those guys on the track and field teams, so, by definition, nothing I do could ever be defined as "quickly" by comparison to those guys. Even taking those guys out of the equation, let's just think about the speed at which I moved. Compared to the maximum speed at which I'm capable of moving, I was only working at about 45%. I don't think I can call that "quickly." Therefore, I can honestly answer his question with a "No."
Witness (aloud): No, I didn't.
Quibble words give the witness room to honestly argue with your questions. Take a moment to place yourself in the witness's shoes. If you absolutely, positively did not want to answer the question, which words would you take exception to? Which words would you argue with? These are your quibble words. These are the words your witnesses will find contention with. You need to eliminate them.
Eliminate the quibble words, and you'll make a witness's evasive response seem ridiculous. Eradicate your quibble words, and you'll streamline your cross-examination.