Want to make witnesses hate you?

How to Avoid Creating a Hostile Witness

If I had to add it all up, I know that I’ve logged more than 10,000 hours in the courtroom.  Between jury trials, non-jury trials, motion hearings, docket soundings, conference meetings, status checks, plea hearings, and miscellaneous courtroom arguments, I have spent a lot of time in a lot of courtrooms.  I’ve been the lead trial lawyer on cases, sat second chair, been a witness, been called for jury duty, and even put on the robe to judge mock trials and teen court.

With all of that courtroom experience, you’d think that I would have been ready for what happened a few years ago when I was called to the witness stand…  But I wasn’t.  My experience as a witness was one of the most frustrating experiences I’ve ever had in a courtroom.  Here’s the story of what happened, and five guidelines to prevent your witnesses from turning against you.

1. Tell your witness EXACTLY where to go.  I normally try cases in our downtown courthouse, and I’ve been to all of the outlying courthouses for miscellaneous hearings.  But I’d never been to this courthouse before.  The courthouse was located at the jail complex, and I didn’t know which building I was supposed to go to.  I had to poke my way around a little bit before I was able to find the right building.  Once I finally found the right building, I had no idea which floor I was supposed to go to, and I had no idea which of the two courtrooms I was needed in.  Even when I found the right courtroom (which was behind bulletproof glass) I wasn’t sure if I was supposed to wait outside with everyone else or if I was expected to ask a guard to let me inside.

Even if you think your witness knows their way around the courthouse, don’t assume that they know where to go.  Tell them not only where to go, but where they should park.  If there is more than one building, tell them which one they’ll go to.  Tell them how to navigate through the metal detectors.  Once they’re inside the building, which floor do they need to find?  Which room?  Should they stay outside the courtroom, or should they walk inside?  Remove all doubt from their heads — tell them exactly where to go.

2. Tell them what to bring to court.  How much will it cost to park their car?  Will they need to bring cash, or does the garage accept charge cards?  Will they need to bring coins to feed a parking meter?  Should they bring something to occupy their time while they wait?  Should they bring a book or magazine to read?  Is it okay for them to bring a laptop and do some work while they wait?

3. Tell them what to leave behind.  As I mentioned, this courthouse was at the jail, so security was heavier than at a regular courthouse.  Luckily, I’ve been to jail before (always on the “Just Visiting” side of the board) so I knew to leave prohibited items (like my cell phone and the shiv I made by sharpening a spoon) outside in the car.

If there are any items your witnesses shouldn’t bring to the courthouse, tell them specifically what they can’t bring.  And don’t limit your list to items you don’t want them getting caught with at the security lines, like drugs or weapons.  Tell them the other items that you don’t want coming into the courthouse.  For example, if someone brings attorney-client privileged documents with them to the witness stand, the opposing attorney may be entitled to review them.  If the item isn’t necessary to aid their testimony, tell them that they’re probably better off leaving it at home.

Simple Mistakes Can Turn a Friendly Witness into a Hostile Witness

Simple Mistakes Can Turn a Friendly Witness into a Hostile Witness

4. Lie to your witness about how long it will take.  That’s right — LIE to them.  Why?  Because it never goes as quickly as you hope it will.  If you lie to them about how long it will take, you’ll probably be telling them the truth.  Here’s what happened to me:

I was told to be in court at 1:30 PM for a 1:30 hearing, that I was the only witness, and that my testimony wasn’t going to take any longer than a few minutes.  Relying on that information, I blocked off 1:30 PM – 3:00 PM on my calendar, just to be safe, but left two important appointments on my calendar: An appointment at 4:00 PM, and a speech to the law school at 5:00 PM.

I arrived on time and was ready to go at 1:30 PM, but they didn’t call the case.  “No problem,” I thought, “That’s why I scheduled some extra time.”  But then they didn’t call my case at 1:45 PM, either…

2:00?  Nope.

2:30?  3:00?  3:30?!?  Nope, nope, and nope.

As the clock ticked past 3:00 PM, I started getting antsy.  As 3:30 came and went, and I started realizing I wasn’t going to make my 4 o’clock appointment, I started getting upset.  And as the small hand spun past the 4 o’clock position, I moved from upset to angry.

Things would have been more relaxing if someone had simply lied to me: “Don’t schedule anything this afternoon, because this is going to take all afternoon.  You might even need to stay past 5.”  If someone had lied to me, I would have rescheduled everything else and just planned to spend the entire day in court.  Not only that, but instead of being irate when I was finally released at 4:15 (more than two hours longer than I’d expected), I might  have actually been happy about it, thinking they’d gotten me out early.

5. Respect your witness’s time.  Finally, more than 2 ½ hours after I was told to be there, I was called to the witness stand.  I turned to the clerk, raised my right hand, and took the oath:

Q: “Do you swear to tell the truth, the whole truth, and nothing but the truth?”
A: “I do.”

Those were the only words I spoke in the entire hearing.  As I was being sworn in, the judge asked the lawyers to approach the bench.  They spoke for a few moments, and then announced that the case was being continued to a later date until a companion case could be resolved.  My entire afternoon was wasted, and they hadn’t even needed me for the hearing.

How cooperative do you think I’ll be when they ask me to come to the next hearing?!?

Just because we can issue subpoenas and force people to sit in court doesn’t mean we should.  The easiest way to convert a friendly witness into a hostile witness is to disrespect them or waste their time.  If there’s a chance your witness won’t be needed, tell them up front.  As soon as you find out that the hearing is going to be cancelled or that you don’t need their testimony, tell them immediately and apologize for the inconvenience.

In short, the best way to keep your witnesses from hating you (and possibly sabotaging your case) is to follow the Golden Rule.  Treat your witnesses like you want to be treated, and you won’t turn your witnesses into enemies.

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6 thoughts on “Want to make witnesses hate you?

    A lie, repeated often enough, will be perceived as the truth – even in the mind of a reasonable man.

    The hardest statement to combat/refute at trial is the half-truth.

    When addressing the jury during oral argument:
    TALK COUNTRY … not city slicker
    Make sure the jury knows what the difference between horse dung and a cow patty – the difference between what they look like and smell like without calling it S_ _ T !

  2. Yes, this was a good article. But how something more helpful, i.e, how do you lay a foundation? How do you introduce an exhibit?

  3. Very useful tips
    But I want some immediate tips on:
    A false case is going on against me(engineering graduate, age 61 yrs, not a lawyer) , filed by a cunning high court lawyer to harass/extortion.
    The case is at pre charge evidence and complainant, the lawyer has closed his evidence.
    1. How to convince the court to allow my application u/s 311 croc for recalling of the one of the witness(complainant himself) as I have already cross examined him and it continued for 3 dates and 7 pages due to various reasons, his non cooperation, my inexperience, my nervousness in court and the complainant/witness being a high court lawyer.
    2. On the last cross examination date, the case was shifted to a new building 10 km away and I was not prepared as I thought that I will only get a date but I was called upon to cross. I did not anticipate this

    Can u help me

    Ravi batra

  4. This is a great point I believe too many do not consider. Attorneys are notorious for undervaluing the time of our witnesses and clients while holding our time so precious, myself included. This is a very well spoken piece as they always are. Thanks for the insight and new perspective.

  5. Always good advice and tips. I’ve had many of the same experiences. It never hurts to be reminded of the things that needs to be covered.