Handling Difficult Witnesses in Personal Injury Cases: Direct ...media.straffordpub.com/products/handling-difficult...2018/11/19 · Handling Difficult Witnesses in Personal Injury

Handling Difficult Witnesses in Personal

Injury Cases: Direct and Cross ExaminationsTips for Managing Hostile, Evasive, Untruthful, Forgetful and Other Challenging Witnesses

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MONDAY, NOVEMBER 19, 2018

Presenting a live 90-minute webinar with interactive Q&A

Thomas C. O'Brien, Senior Counsel, Miller Canfield Paddock and Stone, Ann Arbor, Mich.

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Handling Difficult Witnesses in Personal Injury

Cases: Direct and Cross Examinations

Monday, November 19, 2018

1:00pm-2:30pm EST, 10:00am-1130am PST

Presentation Thomas C. O’Brien

Miller, Canfield, Paddock and Stone, P.L.C.

101 North Main Street, Seventh Floor

Ann Arbor, Michigan 48104

Strafford

I. INTRODUCTION

6

Introduction

7

Types of witnesses

• First Responders

• Police

• Eye Witnesses

• Hospital Personnel

• Nursing home personnel

• Outpatient rehab

• Employer of injured person

8

• Family

• Friends

• Accident reconstruction

Experts

• Bio Dynamics Experts

• Financial experts

• Medical experts

• Vocational experts

Witness characteristics

• Anxious

• Age

• Bias

• Dissembling

9

II. SHOULD I EXAMINE

THE WITNESS?

10

Should I examine the witness?

• Legal theory

• Factual theory

• Community Values

11

Should I examine the witness?

• Does witness provide

testimony not available

from any other source?

• Discretionary exams – a

risk / reward analysis

12

III. PREPARE FOR THE

WITNESS STAND

13

Tools to control the difficult witness

• A statement covering

the relevant facts

• Knowing how to use

the statement

14

Witness statements

• Depositions

• Evidentiary hearings

• Interview statements

• Writings

• Speeches

• Social media

15

IV. THE FORGETFUL

WITNESS

16

The forgetful witness

• Common

• Anxiety can impeded memory

• So can the passage of time

• Usually witnesses are not

trying to be difficult, they are

just nervous

17


• Feigning lack of memory can

be perjury

• Will deal with this when we

come to lying witness

18


• Anything can be used to

refresh recollection

• Kipling, the Tennessee Waltz,

hickory smoke, a swatch of

corduroy, chocolate soda,

faded snapshot

19

Refresh a witness’ memory

• FRE 611 – Leading questions are

permitted “as necessary to develop

the witnesses testimony”

• Use a memory jogger, usually this

is a statement

Only attempt to refresh memory of a friendly

witness / Extract admissions from difficult

witnesses

20

Refresh a witness’ memory

21

• Concepts of refreshing recollection and past

recollection recorded are often confused

• FRE 803 (5) provides the foundation for recorded

recollection

• A matter the witness once knew about but cannot

recall

• Made or adopted by the witnesses when the matter

was fresh in memory

• Accurately reflects the witnesses knowledge

Note: If admitted the record may be read into

evidence but is received as an exhibit only if offered

by the adverse party.

What if memory is not refreshed: Past recollection recorded

The difficult witness

• Prior statements of a party are

substantive evidence – FRE 801

(d)(2)

• Prior statements of a witness under

the federal rules are substantive

evidence – FRE 801(d)(1)(A)

Extract admissions, do not refresh

recollection

22

V. CONTROL

TECHNIQUES: CROSS-

EXAMINATION

23

Control techniques: cross-examination

Theory of the case

24


Cross is a way to display

information

25


Storyline theory of cross

26


Leading questions on a 1 to

10 scale

27


Know the answer

28


Start strong

29


Short phrases

30


One information point per

assertion

31


Stay with facts when you

can

32


Avoid loaded words

33


Plain English

34


Track language of prior

statements precisely

35


Drop connectives: “isn’t it

true”, “isn’t it correct”

36


Do not echo

37


Insist on an answer but do

not quibble

38


Listen closely to the answer

39


Techniques of control when the answer

is not responsive:

40

• Repeat the question exactly

• Hand signals

• Characterize the answer, “that was a yes?”

• Avoid the bargain

• Only ask for the judge’s help as the last

resort


One question too

many. Trying to extract the

ultimate conclusion

41


End with your best point

42


Avoid a timid ending

43

44

VI. LAWYER DEMEANOR

Lawyer demeanor

Do not become:

45

• Hyper-aggressive

• Raising your voice

• Badgering the witness

• Talking fast

• Interrupting the witness

• Snarling

• Pacing

• Activing dismissive

Lawyer demeanor

Do:

46

• Stay calm

• Professional

• Follow your plan

• Be patient

Thomas O’Brien101 North Main St., 7th Floor

Ann Arbor, MI 48104

[email protected]

Thank you!

Documents

Handling Difficult Witnesses in Personal Injury Cases: Direct ...media.straffordpub.com/products/handling-difficult...2018/11/19 · Handling Difficult Witnesses in Personal Injury