Personal Injury Witnesses
Most lawyers have a different style and approach to examining witnesses at trial. In personal injury cases, the lawyers have the ability to take the depositions of the witnesses that will testify at trial so that they know ahead of time what the expected testimony will be.
However, even though witnesses have given sworn testimony in a deposition before trial, they often change or qualify that testimony at trial. If a witness testifies at trial differently to the same question that was asked in his deposition, that witness may be “impeached” with his prior testimony.
Impeachment refers to the process of confronting the witness with his prior sworn testimony, which was transcribed into a type-written format by the court reporter, and demonstrating to the jury that he answered the question differently when he testified under oath in his deposition. The purpose of impeachment is to attack the witness’ credibility. If the witness is not credible on one point, the jury may disregard that witness’ entire testimony.
Thus, it is extremely important to carefully prepare for and confront trial witnesses in a deposition prior to the case proceeding to trial. The deposition testimony “locks” the witness into a story that will be hard for them to change at trial without losing credibility. Of course, there are those rare and gratifying moments at trial that a witness will admit his negligence or a key point in favor of the plaintiff, but most experienced lawyers know that such an occurrence is very unlikely.
Examining The Witnesses
The art of examining a witness effectively, especially on cross-examination takes many years to perfect. Some lawyers never fully understand and master this critical trial function. Simply asking direct questions rarely produces any favorable testimony. The witness must be carefully led into a corner where he has no other option but to admit the truth.
Moreover, examining a witness successfully often entails reviewing cumbersome documents and testimony of other witnesses. Since two people rarely recall the sequence of events exactly the same, fact witnesses can often be impeached by conflicting testimony of another fact witness who saw things differently.
Moreover, witnesses may not be aware that documents generated or produced by the company or other entity completely invalidate their testimony.
Although it is potentially very risky, some lawyers, for tactical reasons, simply choose not to depose every witness before trial. Often, the witness’ spontaneous reaction to the questions presented at trial provide the jury with powerful insight into the witness’ true feelings about the issues. Only the most skilled trial lawyers consistently perform this strategy.
Whatever style utilized by the attorney, a successful examination of witnesses begins and ends with preparation. This is because even the most prepared attorneys encounter unexpected responses and actions of witnesses at trial. The attorney’s natural instincts and abilities to spontaneously respond to these situations will determine that fine line between success and failure.