The Evasive Witness
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The Evasive Witness

The Evasive Witness

Unfortunately, most of us have experienced the evasive witness. They take many forms, and whether they are expert witnesses or lay persons they can catch us off guard and throw us off our game. These are the witnesses who won’t give you a clear answer, the ones who tell you they can’t answer, that “they aren’t experts,” or the ones who constantly change their story. Dealing with an evasive witness can really disrupt the flow in a deposition or cross-examination, and while we cannot force people to cooperate, we can prepare ourselves with effective tactics. This post will tell you how to deal with these troubling evasive witnesses.

1. The “Im not an Expert” Witness

A witness who responds with “I don’t know,” or “I can’t answer that,” or witnesses who just play clueless, all fall into this category. When you are faced with this witness, your best tactic is to convince them that while they may not know for sure, they can agree that plausible explanations, experience and common sense tell them it could be true. GIVE AN EXAMPLE OF WHAT THIS IS OR WOULD LOOK LIKE.


Box in a Witness: A lot of times when a Person Most Qualified (“PMQ”) is being deposed they will tell you they “don’t know” even though they probably do. This can be extremely frustrating. One way to compel a response is to box in the witness with excessive questions. By doing this, first restate and summarize why the witness is designated to speak as the PMQ. For example, “You have told that you have been designated to speak for the corporation on this issue, that you are the person most authorized, and that you have been authorized and designated to speak on behalf of the corporation.” 

Next, exhaust the issue by following up with questions. For example, ask the witness if there is anyone or anything (documents, facts) that would change their answer. Try to present to the witness certain real facts in the case. This will show audience that the witness would know the answer had the the facts been presented to them. Then, present those facts to the witness. This will box in the witness from changing their answer and compel them to admit to you the yes or no response you were looking for.


Make the Witness Feel Foolish: Another strategy for dealing with a witness who claims they “do not know” is to make them feel foolish for claiming they do not know. To do this, summarize what they are designated to testify about, thereby showing they should know the answer, and then present them with situations where it would be impossible for them admit “they don’t know.” For example, if they are a medical expert and they tell you they do not know whether the plaintiff had a preexisting back condition, confront them with the question, “if you were shown an x-ray of the plaintiff’s back prior to the incident, would you then be able to know if he had a preexisting condition?” The witness would have to admit that, yes, he would be able to know. And, if he still admits he would not know, it could discredit the witness’s entire testimony.

2. The Witness Who Changes Their Story

Experts and other evasive witnesses will sometimes introduce new concepts and facts, making it impossible to really know what they will say in trial. Before deposing a witness who will likely be difficult, make sure you plan what specific information you want to elicit from them, and make sure to avoid using open-ended questions – link- . Also, you must be sure to make your questions based on facts, not opinion or conclusion. This will give you the most control in the deposition room. 

Box in a Witness: Similar to the above, this method of boxing in can also be used to prevent a witness from later testifying to something different. First, restate and summarize the witnesses statement or inability to testify. Then, ask follow up questions that will demonstrate to the witness you are covering every basis for the witness to change his answer. For example, ask “If you did not speak to so-and-so, would that change your testimony today,” or “had you not been provided this document, would that change your testimony?” When asking these follow up questions, you are “boxing in” the witnesses answer by covering every possible scenario that would possibly lead them to a different testimony down the line.

3. The Argumentative Witness:

Opposition witnesses are often hostile, difficult, and temperamental. In order to handle these witnesses, try using the techniques mentioned above: Exhaust the issue; avoid open-ended questions; restate their qualifications and box in their answer. If those do not work, or if the witness is trying to change the subject, try the following:

Throw out the Trash: When the witness is non responsive and does not give you a concrete answer, try saying, “Thank you for your answer, however, I am asking….” 

Repeat the Question: Try, try again.

One Fact, One Question: One at a time, states facts that the witness cannot disagree with.  This allows the jury to come to their own conclusions. 

State the Opposite: When the witness does not admit to the question, ask the opposite, “So you didn’t have three beers?” 

4. The Witness Who Doesn’t Know What You Mean

Many times a witness will give you a puzzled look and tell you, “I don’t know what you are asking.” This can happen even from the most educated witness and from the most basic question. Watch out for this during a deposition. It is the oldest witness trick in the book. It puts the witness back in control and gives him or her time to consider the question. When a witness tests this on you, try the following:

Ask for and Adopt Word Meaning: The most obvious technique is to as the witness to define the term for you and then incorporate that definition into the question. CAN WE GET AN EXAMPLE?

Use Life Experiences to Create Definitions: This can be a very effective technique to get the witness to agree with what you want them to. This requires the witness to define the term by thinking of their own life experience in which he or she would use the term. This creates an emotional connection between the witness and the question and hopefully gives you a more honest answer. A great example of this is where you ask, “Do you agree that the company has a duty to hire safe drivers” and the witness responds, “What do you mean safe?”  Here, you can talk about safety for their children or their pets. You will have the opportunity to ask them what “safety” means to them. This will hopefully pull on their heartstrings a bit and allow them to open up about the importance of safety. 

Use a Rule or Dictionary for Definitions: If you can anticipate that a witness will test you on a word or phrase, feel free to prepare yourself with a dictionary or rule statement. 

5. The Controlling Witness

Word choice is extremely important, especially to a jury. So often a witness will tell you, “That is not a company rule per se, it is just a guideline.” By doing this, the witness deemphasizes the importance of the rule. In order to gain control, figure out the point you are trying to establish and try to get them to agree.

Agree to relatedness of words: When a witness tells you “it is more of a guideline,” they are reemphasizing the importance of the action, because they likely did not follow it. Therefore, you should emphasize the importance following “guidelines.” Ask them why guidelines are important and whether not following guidelines creates a risk of harm. Encourage the witness to agree that it is important. At this point, you have minimized the differences between the words “rule” and “guideline,” and you have also had the witness agree that guidelines are important, and thus regained control over the witness.



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