There are many ways to deal with a difficult witness. Here brief simple example of one way of dealing with a problem witness from a case I tried several years ago involving a claim against an estate. The deceased , whom I will call Carlton Urall, was a very wealthy man in his late seventy’s.. His wife had been dead some time and he had developed a romantic relationship with a widow who lived in Canada. When died of a heart attack, he left his entire estate to his two daughters. His woman friend filed a claim against the estate claiming that they had a contract of marriage which was recognized in Canadian law and she was entitled to an equal share of his estate. The court found that the Canadian law applied to the claim and the trial took place in Washington State.  A bank had been named executor in the will and they hired a lawyer from a large law firm to represent the estate. The two beneficiaries hired me to represent their interests in the estate. We were given equal rights of participation with the bank lawyer leading the examinations.

The plaintiff , whom I will call Mrs. Crystal, was a sixty seven year old woman who looked much older than her actual years.  She was well groomed, overweight but well dressed. She was quite self confident and on direct examination  told her version with long rambling answers. But, she was clearly very bright and knew the legal implications of the case. The bank lawyer led off with cross examination. He had a difficult time with her. She would frequently interrupt his questions with explanations. She even offered testimony during pauses when there was no question. She never answered his questions directly and would always add her argument of the facts. The bank lawyers objections and appeals to the judge for instructions to the witness were unsuccessful. The conservative judge was reluctant to exercise his authority on this woman who was considerably older than he was and who had a demeanor of innocence about legal procedure that seemed to intimidate him somewhat. In short, she was a nightmare of a witness for the bank lawyer who seemed to lose control of her early in his cross examination. Operating off of a script of questions, her testimony conduct seemed to overwhelm his planned questioning. After a lengthy unfruitful examination he gave up and turned the witness over to me as the attorney for the heirs.

I began my cross examination with a friendly demeanor. I spoke for the court reporter and pointed out that she had a difficult job because she was required to record everything the two of us said to each other. Consequently, I explained whenever  we interrupted each other or tried to talk at the same time it made the reporter’s job impossible. So, we needed to make an effort to avoid doing that. We agreed that that was not fair  to the court reporter and should avoid it.

I then noted that it was also important to try to answer only what was asked as that would shorten the time she was on the witness stand plus her lawyers were able to ask additional questions to clarify anything when I was finished. After assuring me she understood all of this and we should try to avoid those problems I began my cross examination.

Of course, as soon as I started with my very first question, she interrupted me to clarify something. In a friendly tone of voice I said to her: “Oh, Mrs. Chrystal,  you interrupted me and now I have to ask the whole question again for the court reporter. We aren’t getting off to a very good start here are we? Let’s give it another try” She said she was sorry and would try harder for the reporter.

She would comply for awhile and then would revert to her previous conduct. I would stop an express concern for the poor court reporter or confusion about her answer since she had not answered it. She became conscious of her causing the court reporter difficulties and after awhile avoided her previous conduct.

When she evaded the question, I would express confusion as to her answer and ask her assistance in clarifying for me. For example, while she was claiming a right to the deceased’s estate based upon her claim of marriage plans and their loving  relationship, she had not attended his funeral. I asked her about that. “Did you go to Carlton’s funeral Mrs. Crystal?” She gave a long rambling explanation which I allowed her to finish. “So, you did go to his funeral then?” and so on until she conceded she had not.

When she would avoid answering my questions, I would say “You must have thought I asked you about the reasons you just gave. That must be why you gave that answer. Let me clarify.  What I wanted to know was whether there was anything in writing about marriage with Mr. Urall? Does that help clarify?”

When she would offer testimony before any question was asked, I would say “Now the court reporter has to take down everything you just said even though no one asked about that. You know that’s just more work for the court reporter who has a difficult job.”

I made my questions as short as I possibly could to contrast her failure to answer directly clearly. Rather than a direct impeachment I would tell her I was confused because the document I had read seemed to indicate something completely different and handing it to her would ask her to please explain. After I had done that several times whenever it looked to her like I had something that demonstrated she was wrong, she would react. Just my looking confused and searching for something would trigger a response from her that perhaps she was mistaken and agree with me.

At no time did I appeal to the judge for help. At all times I was courteous of her which I felt was expected of me  given her age and general demeanor. After awhile the judge would spontaneously inject cautions about her waiting for a question or only answering the question asked.

Many people would describe this as a “friendly cross examination”  but, the important point is that we need to tailor our cross examination for what is likely expected of us given who the witness represents to the judge or jury. Even if we have the power to prove the witness is not credible it is important how we go about it.


  1. Thank you for posting this blog. It was very informative and helpful in knowing how a great trial lawyer like yourself deal with such witnesses.

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