Abraham Lincoln’s Recommendation
If a witness has nothing to offer that advances the case, counsel should consider Abraham Lincoln’s recommendation that “It is better to remain silent and be thought a fool than to open one’s mouth and remove all doubt.”Lawyer. Other essays and short stories he has written have appeared in a number of places. The corporate governance attorney regularly counsel members of the board of directors
The Browbeater: Loves to confront witnesses with the argument, sometimes just for the sport of it. This kind truly enjoys putting the squeeze on witnesses. Such an attorney hardly comprehends that only they or their client are impressed when they push around witnesses, not the jurors. Jurors want facts that will enable them to do their job, no hassles.
The argumentative attorney sees anyone with the slightest different viewpoint as an outright liar who must be exposed for what they are. Constantly blitzing, the arguer never seems to listen to responses to questions and refuses to take “no” for an answer. It hardly occurs to the Browbeater that bucking heads with witnesses forces them into a defensive mode, and makes them stick more fervently to their guns. Moreover, someone always wins an argument. By definition, the arguing attorney loses control of the cross-examination. Such argument for its own sake opens a good possibility that the witness will take charge of the cross-examination and end up on the winning side. Most importantly, the Browbeater fails to consider that virtually no one, particularly jurors doing their best to serve their civic duty, cares for people who constantly bicker.
The Meanie: Enjoys intimidating and berating witnesses. Rudeness, insults, invective, humiliation, arrogance, condescension, and even outright hostility are the offensive arsenal of the Meanie. One of Meanie’s favorite tactics is threatening witnesses with the penalties for perjury or asking the judge to issue such an admonition. Not appreciating that such conduct offends jurors, this variety of cross-examiners has never sufficiently learned that basic courtesy is expected courtroom demeanor. Examining with a disrespectful attitude neither contributes positively to bringing out the truth nor changes minds about what really happened. Gratuitously bossing around both adverse and innocent witnesses alike is unpardonable. Such conduct just offends the jurors’ sense of decency and turns them off.
For that matter, it seldom occurs to a bullying cross-examiner that nastiness often backfires. In fact, witnesses will provide more useful information when questioned in an unexcited and matter-of-fact manner, not when they feel that the examiner is trying to belittle or get the best of them. Indeed, evading witnesses usually reveal their mistakes through the content or tone of their testimony, not because they are frontally assaulted with
The Tagger: Cannot examine without beginning or adding a tag word or phrase such as “correct,” “true,” “right,” or similar expression to every question. It drives jurors bananas to hear to a staccato string of 5, 10, or more questions starting or ending with “don’t you agree?” or “isn’t that correct?” The tagger probably does not realize that questioning punctuated by this dissonant habit offends jurors’ ears, which may close as fast as their minds. With a little mindful thought, counsel can find many ways to ask leading questions without monotonous and repetitive tags.