When you are cross-examining a witness, you should be careful not to give the witness an opportunity to explain. This is exactly what you'll do, however, if you use adjectives needlessly--
Q. "You couldn't see the collision clearly, Mr. Witness, could you?"
A. "Yes, I could. I had a very clear view of the collision. I was standing right there when it happened--there no way I could have had a better view."
The witness might also reply, "It depends on what you mean by 'clearly.'" In either case, the witness is no longer under your control, and the jury is watching him, not you.
Rather than using adjectives, think about the facts that together can stand in place of the adjective, then turn each of these facts into a separate question. It will make your point as clear as possible, will give the jury a visual image, and will keep the witness under your control--
Q. You saw the collision?
A. Yes.
Q. You were standing across the street?
A. Yes.
Q. About ten feet from the curb?
A. Yes.
Q. The accident happened on the other side of the street?
A. Yes.
Q. The street was five lanes total--four lanes plus a turn lane?
A. Yes.
Q. And there was also a shoulder on both sides?
A. Yes.
Q. It was raining at the time of the collision?
A. Yes.
Q. The rain had just started?
A. Yes.
Q. And you were headed towards the Denny's to get out of the rain?
A. Yes.
Q. Traffic was passing in front of you when the collision occurred?
A. Yes
In this way, you can paint a visual image of a witness who was hurrying through the rain and observed the accident from far away while traffic was passing in front of him. The jury will get the idea that the witness did not have a clear view of the collision without the use of the word "clearly," and the witness will remain under your control.
Source Note: "Controlling the Witness on Cross-Examination," by Michael J. Walter, reprinted in The Litigation Manual: Trial.
Publication Note: Originally published 1/5/05.
Q. "You couldn't see the collision clearly, Mr. Witness, could you?"
A. "Yes, I could. I had a very clear view of the collision. I was standing right there when it happened--there no way I could have had a better view."
----------------------------------------------------------
Can you remedy the above bad answer this way?
Q. Sir, you stated earlier that you had a "very clear," view of the collision, remember that?
A. Yes.
Q. These were your words, "very clear," were they not?
A. Yes.
Q. And you stated that there was no way you could have had a better view, yes?
A. Yes.
Q. You agree with me that the collision did not happen on your side of the street, ture?
A. Yes.
Q. In fact, the collision happened at least 5 lanes from you, not counting the shoulders and the sidewalks, true?
A. Yes.
Q. You agree with me that you could have had a better view of the collision had you been on the other side of the street next to the cars, true?
A. Answer does not matter.
Q. You also agree with me that it was raining at the time of the collision, right?
A. Yes.
Q. Visibility through the rain was affected somewhat, was it not?
A. Yes.
Q. Concerened about getting wet a little bit?
A. Yes.
Q. In fact, you were so concerned about the rain that at the time of the accident you were seeking shelter and refuge at Denny's, were you not?
A. Yes.
Q. In fact at the time of the collision, that was where you were headed, were you not?
A. Yes.
Q. You did not anticipate or expect that a collision was going to happen when you were headed for Denny's, did you?
A. No.
Q. In the rain, and while headed towards Denny's, you were looking where you were going, were you not?
A. Yes.
Q. You were not headed to the other side of the street where the collision was, were you?
A. No.
Q. Not expecting a collision, you were not looking towards the scene of the collision before it occurred, were you?
A. No.
Q. You also agree with me that the traffic was flowing at the time of the collision, yes?
A. Yes.
Q. Cars were passing in the lanes that were stretched in front of you, were they not?
A. Yes.
Q. Assuming you were actually looking at where the collision occurred, you agree with me that the passing cars obstructed your view of the collision, did they not?
A. Yes.
Q. Sir, under these circumstances, and assuming you were truthful in saying that you actually saw the collision, you agree with me that you would have had a "very obstructed," view and not a "very clear," view of the collision, would you not?
A. Answer does not matter at this point.
Any comments as to how I could have made this a better cross? Thsnks.
Posted by: Llama | January 05, 2005 at 10:03 PM