Everyone relates best to the testimony of a witness sitting just a few feet away from them. Data shows that the in-court testimony of a witness can still make or break your case with judges and juries. As such, a trial lawyer’s job consists of using his side’s witnesses to help him tell his client’s story to a judge or jury.
But shrewd lawyers can sometimes get the opposing party’s witnesses to help them win their case. For example, the attorney for a victim of a car accident caused by the Defendant’s negligence calls the Defendant as his first witness at trial. Rather than begin with the facts of the accident itself, the lawyer instead gets the Defendant to admit that on the date of the accident, he had been drinking for 3 steady hours before the crash.
Similarly, in a protective order case, the filing party (Petitioner) calls the Respondent as her first witness. She gets him to admit that even though he denies hitting the Petitioner as she has claimed, that on the date of the assault, he has a long history of grievances against her.
And in a revenge pornography case, the Plaintiff calls the Defendant (ex-boyfriend) to the stand and gets him to admit that on the date of the pornography dissemination, he still had compromising photos of Plaintiff on the hard drive of his computer.
Trial lawyers also recognize that “winning” does not always involve getting the other side to make a statement fatal to that side’s case like for example when an opposing witness is forced to admit that he never even saw the accident in question. Instead, and as in each of these 3 examples listed above, a lawyer’s skilled questioning of all of the witnesses to an incident can often persuade the judge or jury that his side’s arguments are more convincing than those of his opponent.
Other times, exposing a witness’s strongly held but fatally flawed beliefs can destroy a witness’s credibility, especially if the witness holds beliefs that are offensive, not generally accepted, or are clearly not rooted in reality. And by getting a witness to express his or her offensive beliefs, a lawyer can demonstrate to the jury or judge that they should reject the testimony of that witness.
In rare cases, the questioner may for example even come across an eyewitness who also honestly believes that he was abducted by aliens, that he is the reincarnation of an historic figure, or that she has multiple biological fathers due to medical experiments. If you can mine the witness to share their “truth” as part of your case, the utterance of such incredible testimony will effectively neuter any potentially harmful testimony that witness might otherwise have uttered.
More frequently you may unearth a particular bias or negative attitude of a witness called by the other party. By accentuating that bias or attitude during his or her testimony, a lawyer can effectively harm that witness’s believability with the judge or jury. Likewise, if he or she can catch a witness telling a partial truth or leaving out important facts in his or her presentation, they can show that a previous statement of the witness was not entirely truthful.
We live in a world filled with iPhone cameras in nearly every person’s pocket or purse, video cameras in nearly every residential and business window, “eyes in the sky” and body cameras of police and public safety personnel. Even so, the use of videos and still pictures from cameras will never fully replace the impact and electricity of live witness testimony.