Protect Your Witnesses

I've been pretty vocal about my opinion that party representatives, especially attorneys, should not bully witnesses. I especially dislike "punching down." That is, when the witness is less senior, less sophisticated, subordinate, or otherwise nervous, I don't like when attorneys do these things:

• Rapid fire questions so that the witness can't keep up
• Long-winded compound questions that are hard to answer, especially when they are followed by a barked, "It's a yes or no question!"
• Sarcasm
• Arguing with the witness
• Misrepresentations of fact or prior testimony.

You get the picture. I even wrote a whole newsletter about these problems in my old newsletter, You Are Probably Doing Cross-Examination Wrong.

Unless the behavior is extreme or prolonged, I try not to interfere. It is a party's right to put on their own case, even if how they do so hurts them in the long run. When witness mistreatment happens, what I really need is for the other advocate to intervene with some objections.

In a recent case, I was reminded of the importance of objections by the parties when it comes to managing an arbitration hearing. A lot of the above tactics were used against a not-totally-sympathetic witness, but they weren't really eliciting any new information. Adverse witnesses do not change their minds because you ask them the same question in several different tones of voice.

I kept looking at the advocate who had originally called the witness, mentally begging him to make some kind of objections so that I could reset the pace of the hearing and get some real evidence into the record. But the advocate just sat there taking notes. Maybe he thought the witness was holding her own or maybe he was planning his redirect. Maybe he wasn't even listening, since he knew that there was no new information that would be revealed.

In my mind, I was saying, "Please protect your witness!"

Protecting your witness means inserting timely and logical objections when cross-examination has moved beyond the scope of the original questions and into argument, conjecture, or worse, harassment.

In addition to my dislike of bullying, I have previously said that I would like to limit objections.

Using Objections

Practice Makes Perfect

Champions of ConflictAndrea Dooley

That said, an accurate objection, used judiciously, can interrupt the flow and give the arbitrator the opportunity to redirect the action. Here are the five objections that are most useful for protecting a beleaguered witness and getting a case back on track:

Here are the basic objections that I encounter in arbitration.

1. Exceeds the Scope of Direct: This objection is used when a question to a witness asserts a fact that they didn't testify about in their direct examination. In theory, the opposing counsel could always call an adverse witness to give testimony on a new subject but this objection gives the arbitrator the chance to limit the overall scope and articulate what issues they'd like to hear more about.
2. Compound: This objection is used when the question has two or more parts and doesn’t call for a single answer. This gives your witness some breathing room. The best course of action for the advocate asking the question is to ask two or more separate questions that lead the witness to the same conclusion.
3. Vague: This objection is used when the answer could relate to different things, such as different occurrences. Be careful using this one. If you haven't been paying close attention and the question was just a simple follow-up question that the witness and the arbitrator understood, you may annoy them both with the interruption. Only use this if it really makes sense. Usually opposing counsel will restate or withdraw the question without the arbitrator ruling, and you haven't gained much breathing room for the witness.
4. Calls for a conclusion: I hear this objection most often when the moving party wants their union president or the top manager to say what the outcome of the arbitration should be. For example, “Did you have just cause to terminate Jerry?” or “Did the employer violate the contract when he denied Jerry his band practice leave?” These questions and the inevitable objections make me roll my eyes internally. Of course, the manager thinks they had just cause, and the union president thinks the contract was violated. I also know that the ultimate decision rests with me, and I’m not persuaded by the obvious opinion of the party witness. I expect this objection in this instance and will usually make it clear that I intend to be the ultimate decisionmaker.
5. Argumentative: This objection relates to questions that are really just arguments with the witness. This objection is helpful to focus the arbitrator on how the advocate is treating the witness. Even if they arbitrator rules against you, they will probably be on guard against future bullying. These questions often take the form of repeated leading questions and have the feel of a bad Perry Mason impression. Arbitrators are not impressed by arguments with a witness.