Evasive Witnesses Part Three – The Evasive Expert Witness

Phillip Miller

Trial Lawyer, Trial Consultant, Author

Part Three Category 2: The Evasive Expert Witness

This is the third Blog in a series covering how we deal with evasive witnesses. You can see those Blogs  here.

The examination of experts or other evasive witnesses in a deposition often is reduced to one of two things:

1. An extended argument or harangue of a witness.

2. The witness continually introducing new concepts, facts or opinions so it seems impossible to really know what the witness will ultimately say in trial.

If opposition witnesses were fair and honest, it would be completely reasonable to expect to prove facts or theories favorable to your case, such as;

* The witness agrees with certain facts that your witnesses have proven or that are elemental to your case.

* The witness respects the opinion, qualifications, or training of one or more of your witnesses.

* One or more of the Plaintiff’s theories are reasonable alternatives to those that the opposition proposed.

Unfortunately, opposition witnesses are often hostile, difficult, and evasive. Depositions of such witnesses must include what we have already discussed, exhaustion, restating, summarizing, and boxing in, as well as specific techniques for control.

Before deposing a witness who is likely to be difficult, you must analyze what you can reasonably accomplish with this witness and the questions and answers that you will need to succeed. This means writing out the questions you will ask and writing out alternative follow-up questions based on the possible responses.

Examining the evasive or difficult witness means you must incorporate basic elements of control including the following.

Basic Elements of Control

First, avoid open-ended questions. You must learn to avoid an open-ended question (why, how, please explain, and so on). You cannot control a witness with an open-ended question.

Second, Make each question about one fact, not a conclusion or opinion. This is the technique that gives you the most control. The witness will never agree with your conclusions and it is foolhardy to ask a witness to state his conclusion. The advantage of this technique is that when a witness runs, you can easily repeat the question again and again. Each run makes the witness appear less credible and frequently in the witness admitting the fact embedded in the question.

If you ask the question “You were drinking all night on January 14, weren’t you?” It is unlikely the witness will answer “yes.” Instead, you must break down this question into short questions (one fact-one question) and be prepared to repeat the question when the witness runs. For example:

Q: You got home sometime after 5:00 p.m. that night?

A: Yes.

Q: You had a couple of beers at home?

A: Well, it was after 5:00 p.m., and I had a full meal in my stomach before I drank any at all.

Q: You had a couple of beers at home?

A: I usually have something when I get home from work. It’s hot in the summer, and I don’t have air conditioning.

Q: You had a couple of beers at home. [at this point the witnesses answer become irrelevant because everyone knows the answer]

Third, as demonstrated in the example above, your words and sentence structure must be short, precise and simple.

Fourth, announce a change of subject matter so the jury, and the witness, will understand that the subject is changing. For example, you might want to signal the jury that your question is going to relate to the Plaintiff’s injuries at the scene by saying, “Let me ask you about how the Plaintiff looked at the scene. Was he able to get out of the car?”

Fifth, master the following control techniques to supplement one fact, one question.

* Repeat the question. When the witness is non-responsive, repeat the question again and again, as needed.

* Throw out the trash. When the witness is non-responsive, say, “Thank you , Mr. Witness, but I didn’t ask you about [topic the witness used in his non-responsive run] I asked [repeat the original question]

* State the opposite. When the witness is non-responsive, state the opposite of what the truthful answer is. For example, “Are you saying you didn’t have two beers at hom

* That is a no-yes. When the witness is repeatedly non-responsive, include the correct answer in the question. For example, “Then that’s a yes, you did have two beers at home?”

Sixth, string together multiple questions that are one fact, on question, sequencing multiple facts that you can compel the witness to answer allows the jury to derive conclusions that are inescapable, even if unstated. A conclusion a jury makes is stronger than any conclusion you may spoon-feed to them. For example, if you would like the jury to conclude that a trucking company hired an unsafe, dishonest driver, and you want to prove it through an opposition witness, see the following set of questions.

Each of the following questions presumes you have a document that proves the underlying facts and is being contemporaneously used with the witness to control his testimony.

Q: Mr. Hogan had three collisions in the three years prior to his hire, didn’t he?

Q: Mr. Hogan’s logs show more than fifty log violations during the six months prior to this wreck, don’t they?

Q: On ten of these log violations Mr. Hogan misstated how many hours he drove in a day, didn’t he?

Q: On another ten of these log violations he reported in his log that he was in one place and the gas receipts said he was in another place, isn’t that right?

The impact of this sequence of questions and facts allows the jury to conclude, without you telling them, that the trucking company hired an unsafe, dishonest driver.

In my next Blog, the fourth in this series about dealing with evasive witnesses, I’ll address witnesses who refuse to give an opinion.

See what other lawyers say about the Miller Method. If you would like to discuss your “big case” and see if the Miller Method can help you, give me a call at the Miller Law Offices in Nashville at 615-356-2000. If you want to take a look at one of my books on this subject link here.

Thanks again for reading my Blog,

Phillip Miller

Trial Consultant/Trial Lawyer

Miller Law Offices


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