CBA Record January-February 2023

one you’ve persuaded. True, witnesses in a bench trial can be taken out of order when scheduling problems arise. But don’t use that option unless you must. The more you call wit nesses out of order, the more your story gets muddled. The risk of confusion rises. The chances of a favorable decision drop. This one, a real head-scratcher, is much in vogue these days. Plaintiff’s lawyers love to call the defendant as their first witness. But talk about getting off on the wrong foot. The opposing party is a hostile wit ness – literally so. The opposing party won’t be helpful, won’t tell your story, and won’t give a smooth introduction to your case. If the goal is to tell the judge your side of things, make a favorable first impression and keep the judge from get ting confused by putting your best foot forward. Start with your witnesses, not the other side’s. Save any hostile witnesses for later. A short aside. It’s possible to make these first three mistakes at the same time. Some years back, I held a trial involving a bank that had bought leases of medi cal devices as an investment and alleged that the seller had double sold them. The leases and sales were complex. But rather than call a bank officer as its first witness to give some background, the bank called the seller. (To say he was a hostile witness is an understatement.) And rather than ask him about his business and the lease sales, the bank tried to impeach him right out of the gate with a past criminal convic tion. Because I had wiped the mental slate clean, though, I was lost. Who was this guy? What was his business? What was the case even about? No idea. I stopped the trial and reminded the bank’s counsel that he couldn’t drop me in the middle of the ocean and expect me to swim. He got the message and began again. Depose witnesses on the stand This one crops up mostly with hostile wit nesses. Some lawyers don’t bother with depositions. Then, at trial, they make Call the opposing party as your first witness

up their examination on the spot and see where it takes them. Sure, they won’t know what the witness will say, but maybe the testimony will be favorable, right? Unlikely. Again, a hostile witness is just that – hostile. You should lead a hostile witness, the same way you do on cross-examination, and you should have the witness on the stand as briefly as possible. A formless, directionless, open ended examination of a hostile witness is an invitation to disaster. And by the way, the judge will be able to tell from the examination that you didn’t depose the witness, and there may be consequences. A formless examina tion will confuse the judge (who has no clue where it’s headed) and wastes time. It also telegraphs that the case doesn’t really matter to you. If a case doesn’t war rant discovery, best to settle it, because it doesn’t warrant a trial either. Lead friendly witnesses Lawyers find it all too tempting to lead witnesses, to suggest what the testimony is, and have the witness do no more than agree. Leading the witness gives the lawyer control over the testimony’s content and its direction. That’s why leading on cross (leading any hostile witness, in fact) is a good idea. Leading on direct, though, is not. The reason: the lawyer rather than the witness ends up doing the testifying. (During the trial scene in the Charles Portis novel True Grit, defense counsel objects to a leading question this way: “If the prosecution is going to give evidence I suggest that he be sworn.” Quite right.) But the judge wants to hear what the witness has to say, not the lawyer. Leading witnesses ultimately under mines their credibility and deprives their evidence of its weight, undercutting your case. Let the witnesses do the testifying. Object to every leading question Too often, lawyers object to every stray leading question. Objecting is a mistake. It’s a mistake, first, because many lawyers don’t know when a question is leading. A question is leading if it suggests the answer. It isn’t leading because it calls for

the witness to answer yes or no. (So “did you go to the grocery?” isn’t leading, but “you went to the grocery, right?” is.) It’s also a mistake because the odd leading question here or there isn’t a big deal. If the judge sustains your objection, a lead ing question is easily made non-leading, and the witness already knows the answer because the original leading question sug gested it. Your objection merely highlights the answer once it’s given. If, on the other hand, your opponent consistently leads a friendly witness on direct, at some point enough is enough, and it’s time to object. Leading is a bad idea, but it’s also an easy way to get questions answered and testimony into evidence. Maybe the examining lawyer can’t conduct a proper direct if forced to. Maybe the witness hasn’t been prepared and can’t answer non-leading questions. Consider whether you’ve reached the point when it makes sense to find out. Then object reluctantly, adopting that weary, “I hate to object, but…” tone. For whatever reason, some lawyers believe that exhibits (typically documents) are the only real evidence, and testimony doesn’t count. So, they call a witness – even a wit ness who is a party – solely as a way to get exhibits admitted into evidence. They show the witness a series of documents, have the documents admitted (mostly because no one objects), and that’s that. This may make sense in the rare instance when a witness is called only to talk about documents. But it makes no sense if the witness is an occurrence wit ness, even in a commercial case. Remem ber that your case should tell a story. Witnesses tell stories. Documents don’t. The witness’s testimony, not the exhibits, should be the main event, with the exhib its integrated into the testimony, punctu ating or illustrating it. Assume your evidence is admissible Lawyers often seem stunned when they offer evidence, the other side objects, and the judge sustains the objection. They Treat witnesses solely as a way to admit exhibits

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