You’ve got a problem. A big problem.
Your witness has some fantastic information that is going to put your case over the top. Unfortunately, he’s also going to bring some pretty significant baggage with him to the witness stand. It might be a conviction for perjury, perhaps a damning prior conviction, or maybe he’s even placed a $100,000 bet riding on the outcome of the case — whatever the baggage is, it’s bad.
So… what are you going to do?
Are you going to bury your head in the sand and hope that the problem fixes itself? Optimistically hope that your opponent incompetently forgets to cross-examine the witness about the baggage? Pray for a miracle (or for a continuance)?
Certainly, in some cases, the baggage may be so terrible that you decide not to call the witness. After all, if you’ve done a good job of case selection and preparation, you’ve got at least two forms of proof for every essential element, so you’ll still be able to successfully prove your case even if you don’t call the witness. But, just for sake of argument, let’s assume that your second form of proof carries even more baggage (or even worse, you don’t have a second form of proof). You’re stuck calling this guy — what are you going to do to minimize the inevitable damage that will erupt during cross-examination?
One way to exercise damage control is by eliciting the damaging information yourself during direct examination. It’s an essential element of spin control: timing the release of negative news to steal your opponent’s thunder, so that the problem can be addressed on your terms, rather than your opponent’s terms.
Here are three quick guidelines for exercising damage control during direct:
1. Timing is everything. Apply the principles of Primacy and Recency to the timing of your disclosure. If you start with the bad news, it negatively affects the way jurors look at the rest of your witness’s testimony. If you end with the bad news, that’s all they’ll remember. Instead, time the disclosure during the middle of your direct examination or during a low point in the testimony, so that it doesn’t resonate as loudly in the jury’s minds.
2. Confront the witness. If you want to minimize the sting of the impeachment material, consider subjecting your witness to a “mini cross-examination” during your direct. In my experience, disclosures aren’t as effective if you meekly ask the witness about the bad news. You need to actively confront him about it. You’ll have to determine how much confrontation is appropriate in your case, but chances are, at the very least you’ll switch to leading questions, raise your voice, and quicken the pace of your examination. (“After you were robbed, you didn’t immediately call the police, did you? No, you called your friend, instead, right? And you asked him to remove the bong and the drug scales from the house before you called the police, didn’t you?”) Often, your opponent won’t even object to your use of leading questions during this portion of your direct, because you’re covering exactly the same issues that they want to address. By asking the “big” questions, you should be able to prevent them from being re-asked during cross. Remember, “Asked and Answered” or “Repetitive” objections apply to the entire examination, not just one lawyer’s series of questions.
3. Ask “Why?” and accept the witness’s answer. This is the most important part if you’re hoping to draw the venom out of the wound. Once the witness has admitted he did the bad deed, you need to give him a chance to explain why he did it. At the end of your “cross-examination,” you’re going to ask him to tell the jurors his reasoning, motivation, or explanation for what happened. To ease into this section, consider pausing for a moment, shifting your body language to a less confrontational stance, lowering your voice, and then simply asking, “Why?”
Give him a chance to explain what happened. If he doesn’t fully explain his actions, or his explanation falls short of credulity, switch back to a more confrontational mode and hit him with more “Why?” questions until he gives you a reasonable explanation. It’s important that you don’t let him off the ropes until he’s given you a plausible explanation, but once he’s given you a plausible answer, you need to accept his response. Demonstrate your acceptance through both your body language (ex. nodding your head once in agreement, relaxing your shoulders as the tension disappears from the room, or turning towards the jury to make eye contact) and your tone of voice. It’s essential that you non-verbally communicate your acceptance to the jury, because if you don’t accept the answer, there’s no way the jurors are going to buy it.
[NOTE: I was a bit hesitant to include this last portion, because I’m afraid some lawyers will misconstrue my advice and make improper comments on the record indicating their acceptance of the witness’s answer. Remember, it is improper for lawyers to state our belief in the justness of a cause, so you shouldn’t ever make comments like “I believe you” or “I accept your answer.” However, I don’t believe this precludes lawyers from demonstrating their belief in their case through changes in posture, stance, tone of voice, pitch, tempo, or non-verbal body language.]
Finally, remember to periodically check in with your jurors by making eye contact with them during this exchange, so that you can gauge how they’re reacting to the disclosure and calibrate accordingly. You won’t be able to completely eliminate the negative impact of the impeachment material, but hopefully, if you correctly apply these three techniques, you should be able to exercise a fair amount of damage control, and prevent your witness from imploding on the witness stand.