He's hostile.
He doesn't like me.
He doesn't like my client.
He doesn't like that he is in court.
He wishes he were someplace else.
I know that whatever comes out of his mouth will be unfavorable to my clients' case.
I know that if given the opportunity, he's going to badmouth me and my client.
I know that if I ask him "Why?" he's going to grab the bull by the horns and explain at length why our case does not have merit.
Because I know these things, I can plan for them.
I can plan to avoid them.
I can plan a strategy that never gives this hostile witness the opportunity to explain anything.
I can create a strategy that does not allow him to spew his vitriol and hatred when I am questioning him.
Want to know how?
It's actually simple.
Simple in theory, not reality.
However, if done correctly, it works very well.
The short answer is by asking short, tight, leading questions.
Questions that ONLY call for a yes or no answer.
That means that EVERY ONE of my questions must be carefully phrased to ONLY call for a yes or no answer.
I don't want him explaining ANYTHING.
I don't want him telling a story.
I don't want him giving excuses.
Instead, I ONLY want him to either agree or disagree with my statement or question.
The only alternatives he has is to claim "I don't remember" or "I can't answer the question the way you asked it."
That's it.
Yes.
No.
I don't remember, or
I can't answer the question the way you phrased it.
Think you can do it?
Try it.
It's not so easy.
Especially when the witness has his own agenda.
He wants to tell the jury why he's right and we're wrong.
He'll do everything he can to wiggle out of answering my questions directly.
Not unlike the Presidential candidates at their debates.
Let me give you an example.
Let's say this is a medical malpractice case.
I am now questioning the doctor whom you have sued.
The doctor whom you believe was careless and caused you permanent harm.
I need to establish a number of things with this 'hostile' witness.
By the way, you should know that a 'hostile' witness need not yell or scream.
A 'hostile' witness simply means that he is an opposing witness.
His interests are adverse to ours.
I need to establish what the basic standard of care is in this instance.
I need to establish whether his treatment conformed to the standard of care.
I also need to determine whether he violated the basic standards of medical care.
If done correctly, this 'admission' from the doctor is extremely powerful to use against him.
"Doctor, would you agree that the basic standards of medical care required you to take a detailed thorough history from the patient on her first visit?"
"Yes."
"Would you agree the standard of care required you to inquire why she was in your office?"
"Yes."
"That's know as the 'chief complaint', correct?"
"Yes."
"After taking a detailed history you'd agree that good medical care required you to perform a physical examination, correct?"
"Yes."
"You'd agree that failing to take a medical history would be a violation from the standard of care, right?"
"Yes."
"You'd also agree that a doctor who fails to perform a physical examination on the first patient visit would also be a violation from the standard of care, correct?"
"Yes."
**Comment**
Notice what I'm doing here.
I'm asking tight, leading questions.
Questions that ONLY call for a 'yes', 'no', 'I don't know' or 'I can't answer the question' answers.
There is NO wiggle room for the doctor.
But wait...
I should have told you about a little strategy that some of the best trial lawyers in New York use before they launch into their cross-examination.
It makes cross-examination that much more powerful.
It makes it much easier to control the witness too.
It has to do with getting this hostile witness to agree to certain ground rules.
You might be thinking "What ground rules?"
You might wonder "Why would any witness agree to something before delving into cross-examination?"
Well, if a witness agrees to the ground rules, then it makes it much easier to hold him accountable for his answers.
Let me show you...
"Doctor, before I begin, I just want to let you know that I'll be asking you a series of questions that ONLY call for a yes or no answer. If you can answer yes or no, do you promise you'll ONLY answer yes or no?"
He has to say yes.
"I might ask a question that you cannot answer. In that case do you promise to tell me you can't answer my question and NOT give any explanation or reason why you can't answer my question?"
Again, he has to say yes.
Otherwise, he will appear unreasonable.
"I may also ask a question that's not phrased well. If you can't answer my question because of the way I asked it, will you promise to tell me that you can't answer my question because of how I phrased it, without giving me any explanation?"
Again, he has to say yes.
Once I get the doctor to accept and agree to these little promises before I even begin my cross-examination, I have achieved a great advantage.
Why is that?
It's because now, when I cross-examine this hostile witness, the moment he begins to explain anything I will immediately stop him and bring him back to his promise that he made to me at the beginning.
"Doctor would you agree that it's important to take a detailed thorough history when you see a patient for the first time?"
"Well, I don't agree. It all depends on what you mean by detailed and what you mean by thorough..."
"Doctor, let me stop you. Do you remember a few moments ago, I asked you that if you could answer my question yes or no, you were to do so without giving any explanation?"
"Yes."
"Great. Then lets go back to my question. Would you agree it's important to take a detailed thorough history when you see a patient for the first time?"
"Well, again, it all depends on how you define detailed..."
"Doctor, sorry to cut you off here. Can you answer my question yes or no?"
"No."
"Great, I'll ask another question."
"Would you agree that you MUST take a medical history from the patient?"
"Well, if the patient came in with just one focused complaint then..."
"Doctor, I'm sorry, was there something about my question that you didn't understand?"
"No."
"Excellent. Then let's go back to your promise to answer my questions only yes or no. Would you agree that you MUST take a medical history from the patient? Yes or no."
"I can't answer the question the way you asked it."
**Comment**
See what's happening here?
It's obvious for the jury to see that the doctor is being evasive.
He's playing word games.
Remember when I said earlier that asking yes or no questions was simple?
It is.
However, trying to get a witness to stick to just yes or no is a challenge when they've been told to try and explain everything.
Getting a hostile witness to agree to the ground rules makes it easier.
Easier to show the jury that he's trying to avoid answering my simple questions.
Easier to show he's hiding something.
Easier to show his bias.
Easier to control.
To learn more about the best way to control a hostile witness at trial, I invite you to watch the quick video below...
