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Examining The 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.
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.
The Cochran Firm - Dallas, L.L.P.
Turtle Creek Centre, Suite 1400
3811 Turtle Creek Boulevard
Dallas, Texas
75219
phone:
214.651.4260
| fax: 214.651.4261
Edward H. Moore is Board Certified, Personal Injury Trial Law. Unless otherwise noted, not certified by the Texas Board of Legal Specialization.
The statements and information provided on this web site are for the information of the recipient only. This site is not intended to provide legal advice and no attorney-client relationship should be deemed to arise from the receipt this page and its associated pages. |
Copyright © 2003 The Cochran Firm - Dallas, L.L.P.,
All Rights Reserved.
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