- It takes a lot of law to make up for one good witness.
- A good witness is invaluable; which leads to the question, "What makes a witness good?"
- A good witness can paint the big picture.
“It takes a lot of law to make up for one good witness,” said Angus. It took a while for Judge Gunn to absorb what that meant.
“What are you talking about?” he said.
“It’s everywhere,” said Angus. “There are all kinds of rules in contracts, torts, property, business associations, criminal law— every topic you can think of—that are really designed to make up for situations in which there is no good witness for some central fact.”
“Like evidence law,” said Beth Golden, “has burdens of proof, presumptions, and judicial notice.”
“And all of the rules that deal with bad witnesses,” said Angus. “Like impeachment and rehabilitation.”
“What’s your point?” said Judge Gunn.
“Nothing difficult,” said Angus. “I was working on a brief this afternoon, and I was suddenly struck by the realization that most of the legal research I do can be traced—directly or indirectly—to some hole in the case.
“And given the choice between a good witness and a good book of rules to plug that hole,” said Angus, “I’ll take the witness every time.”
Angus is right. A good witness is invaluable. And that raises the central question: What makes a good witness? So I talked to a number of trial lawyers, and here is what they said.
—William Pannill, Houston, Texas
Pannill once had an oil well case where the key witness was an expert on casing failure. (The casing in an oil well is the pipe that is used to line the hole in the ground. It’s what is supposed to keep the well from collapsing.)
Pannill prepped and prepped his witness, who was well qual- ified, and who had an excellent theory. Everything looked fine until the witness took the stand. Just a few minutes into the examination Pannill asked his expert what he did after he graduated from college.
“I took a two week vacation,” he said. And it went down hill from there. The witness started getting flip. He stopped giving direct answers to questions, and injected what he thought were humorous little asides. Pretty soon he started correcting Pannill’s questions. “No, you really ought to put that question this way.”
The jury got so embarrassed by his testimony that they started looking at their feet instead of at the witness. Pannill knew he had to do something fast, so he asked for a recess. Out in the hall he said, “Listen, you’re killing the case. No more cute little jokes. No more clever asides. Just answer the question.”
—Steve Miller, Cleveland, Ohio
Miller was representing Harley-Davidson, “the last American motorcycle manufacturer.” And he decided to put a representative of Harley-Davidson on the stand—someone who rode his Harley to work in Milwaukee every day—all the way from Oconomo- woc, Wisconsin. Because the trial was in Cleveland, one of the first things Miller asked the witness to do was spell Oconomowoc.
The witness couldn’t do it.
He couldn’t spell the name of his own home town.
Miller’s heart sank. He was certain he had a terrible witness. But the witness was so human in how he smiled to the jury and handled the situation that they loved him.
—Gerald Messerman, Cleveland, Ohio
Messerman says the biggest problem is when the witness is absolutely convinced that he is right, and tries to sell the case. He will overstate his position, and get in trouble. Messerman—who does criminal defense work—says that almost without exception the worst witness is the defendant in a criminal case. Often his parents are just as bad, but not always.
Messerman was representing a young man who was facing serious drug charges, and he decided to put the defendant’s father—an old fashioned kind of country doctor—on the stand. He was beloved in the community, and had dedicated his life to helping other people. Messerman wanted the jury to see what kind of person the son might grow up to be—if he had the chance.
But the doctor’s testimony was limited. He said nothing about his son’s character—he just gave some simple facts. He told his son’s height and weight. That information was relevant because it showed that the description of the person who had been selling drugs did not match that of the son.
But the real point of putting the doctor on the stand was to show what kind of father the defendant had.
—David Schaefer, Cleveland, Ohio
There are lots of corporate executives who are smart enough to be excellent witnesses who just won’t take the time to prepare for testifying. You may have to fight just to get an hour of their time.
On the other hand, says Schaefer, the blue collar plaintiff is usually willing to spend a whole Saturday going over what is involved.
And preparation pays off. Too often the highly successful per- son who gets on the witness stand thinks he can bluff his way through with the attitude that says “I shouldn’t have to be here and waste my time explaining this to you dopes.”
—Miriam Kass, Houston, Texas
The ideal witness, says Kass, can see and express the sub- tleties of a case but can express her ideas without getting bogged down in minutiae.
There are people who have an inherent sense of guilt or inad- equacy that drives them to keep talking. They want to say too much. They are constantly explaining or justifying themselves— which puts them at a great disadvantage.
—Mark F. McCarthy, Cleveland, Ohio
Dependability is key. First, a good witness shows up. Second, he tells the jury the same thing he told you—with no surprises.
There are too many “Oh, oh” witness, says McCarthy. They swear they are giving you all the information they have. Then you get some information from someone else that tells you your witness left something out. So you give him a call.
“Oh, oh,” says the witness. “I must have forgotten that. Now I remember.” So he sends you what he says is all the missing information, and you prepare your case, counting on his having produced everything.
But then at the deposition, he is suddenly confronted by the other side with documents signed by him that you didn’t even know about. “Oh, oh,” says the witness, “I must have forgotten that. Now I remember.”
The problem with the “Oh, oh” witness, says McCarthy, is he keeps thinking he can give you as little information as possible. And if the case gets to trial, you can count on him embarrassing you.
—Douglas D. Connah, Baltimore, Maryland
At least that’s the way it seems, says Connah. A witness who is probably telling the truth can still come across as a liar. All he has to do is exaggerate and fill in the blanks with assumptions.
—Nancy Vecchiarelli, Assistant U.S. Attorney, Cleveland, Ohio
A government agent, says Vecchiarelli, has to be professional, direct, non-evasive, and totally familiar with the facts.
The problem is, you can’t always tell ahead of time how they are going to do—and preparation won’t always keep them from making a bad impression. But of all the mistakes a government agent can make, the worst is when she starts guessing.
Most important of all are the witness’s demeanor and body language—two things that you can’t train a witness to change.
—Robin Weaver, Cleveland, Ohio
It isn’t education, social status, how they’re dressed, or what they do for a living, says Weaver. It’s their overall character.
Weaver recently served on an attorney disciplinary board. The complainant did not come voluntarily. She had to be subpoenaed. She was grossly overweight, not well dressed, and poorly educated. But her simple, open honesty convinced all of the lawyers on the board that she was telling the truth.
—Barbara Kacir, Providence, Rhode Island
There are all kinds of factors that affect the credibility of a witness, says Kacir. One of the most important things with experts is how they feel about their work. It is not enough simply to be competent. The best experts care about what they do. They have dedicated themselves to their fields.
—Cyril Mcllhargie, Chicago, Illinois
Mcllhargie says the best way to look at what is sincere is to go back to its roots—”without wax.” When Grecian pottery was being imported to Rome, some unscrupulous dealers would hide flaws and cracks with wax. But the honest dealers sold pots that had no wax to cover flaws. They were sine cere.
And that is the way the best witnesses are—with no effort to appear perfect or better than they are; with all the flaws, wrinkles and warts that make them human. (By the way, if your dictionary gives a different origin for “sincere,” pay no attention. The “without wax” explanation makes a great story.)
Once Mcllhargie was defending a medical doctor who was charged with malpractice. He was physically unappealing. He had never gotten rid of his crew-cut which he got in the 1950s. And he had a face that was difficult for a mother to love.
At trial the doctor was being badly beaten on cross-examination by a lawyer who was implying that it didn’t matter to him what had happened to the plaintiff.
The lawyer decided to make it explicit for everybody. He asked the doctor, “What difference did it make to you what happened to him?”
His said, “I cared because he was my patient.” That answer won the case.
The excerpt above is from Chapter 14 of McElhaney's Trial Notebook, 4th ed. (2006).