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January 21, 2005

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In many ways your last point may be the most important here. Don’t get so caught up in winning the battle that you lose, or at least lose sight of, the larger war. That doesn’t mean you should back down from aggressively pursuing evidence, and all of your suggestions are excellent for dealing with recalcitrant witnesses. I tend to use the video camera, as it reminds the witness that he or she is participating in a legal forum even if a judge and jury aren’t actually present. Even so, I have seen witnesses get the better of attorneys when the attorney could simply have tried another evidential avenue. You mention having the witness’s lawyer help you keep the witness on track; have you encountered a lawyer who seems to encourage impudence? What do you suggest in such a case?

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I’m curious; has anyone read any literature that deals with which kinds of witnesses tend to be least cooperative? I think in addition to knowing the techniques you include here, it might be useful to predict ahead of time just what kind of trouble you might be in for. I’m not necessarily talking about things like gender or race, but rather particular types of witnesses in particular types of cases. Obviously certain attitudes can be guessed at ahead of time just from common sense, but I’d still be interested in seeing if any surveys had turned up more empirical evidence.

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