I am writing to suggest a column topic.

I would love to hear your thoughts on being in a bench trial, doing a cross examination of a wittness who has a big agenda and will NOT answer the question that I ask.

Assume that I am careful; that I ask carefully-worded questions designed to produce a yes or no answer, but the witness sees where I am going, and refuses to be controlled.

So I do the text-book presciption and just ask the exact same question again. And again. And again. And again. Looking for the witness to actually answer the question that I asked and not some other question the witness prefers.

Imagine that eventually I object “nonresponsive” but the jurist bends over backward to find that my question has been answered. It hasn’t. Imagine that the jurist is all “on board” with where the witness is going–the position of the witness and actually is getting irritated with me for repeatedly asking the same question where the witness does not answer my question.

Imagine further that my client does not have the money for a court reporter so there is never going to be transcript of the proceedings in any form.

Now what? Any suggestions?

As counsel we should always be prepared for our hearings, but what should we do when the judge doesnt prepare? Case in point, recently I had a hearing on a motion for summary judgment. Between opposing counsel and I, our memorandums of law were in excess of 50 pages because there were some complex issues involved. Because of the length of my motion I mailed the judge a courtesy copy, with all case law, a full week before the hearing. However at the hearing, the judge walks into court and the first thing he says is “I just want you both to know that I havent read either of your motions.” As a result, oral argument was virtually meaningless because the judge was either reading the motions rather than listening and/or wasnt able to get up to speed during the course of the hearing.