EVASIVE WITNESSES

Recently plaintiff’s attorney Rick Friedman shared an article from the defense publication ” For the Defense” published in December 2015 entitled ”Strategies for Responding to Reptile Theory Questions” by John R. Crawford and Benjamin A. Johnson.

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The article is written in response to David Ball and Don C. Keenan’s book Reptile: The 2009 Manual of the Plaintiff’s Revolution.” The authors summarize the concept in the book as:

“In brief, the theory calls for convincing jurors that a defendant’s conduct is a threat to the jurors’ safety. That concern for their own safety, according to the theory, will trigger the jurors’ primitive “lizard brain” and overwhelm the other, more logical, parts of their brains. With the “fight or flight” portion of their brains in charge, jurors will look for a path to safety. That path, a plaintiff’s attorney hopes, will lead jurors to render a large verdict against a defendant that threatened their safety.”

The authors promote four rules for combating the impact of the advanced by Ball and Keenan. They are:

Rule #1—Never Say “Yes”

Rule #2—The “Safety Rule” Is Never Simple

Rule #3—The Defendant’s Conduct Was Reasonable

Rule #4—Do Not Answer Damages Questions

In response to the author’s rules, Rick suggests we should start with general questions like: “What is a safety director? What are your goals, what is your mission? [taking the witness’s answer] What do you mean by “safe operation?”  In the general questioning, we are trying to get definitions and vocabulary pinned down. Then we build on that vocabulary and get specific:  “Would you consider a driver who drives more than 12 hours a day to be engaging in safe operation? If you found out that a driver did X, would you, as safety director do anything about it?  Why?” Rick suggests another approach is to ask about training. “As safety director, do you train your drivers to X? Why or why not?” Framing things in terms of how they train, or how the witness was trained, he says, makes it very hard for the defense witnesses to manage.

My general reaction is you could only hope for a witness who followed the four rules the authors recommend and who would give the recommended answers to the questions.

For example,

Rule #1—Never Say “Yes”

 The authors recommend that a defense witness should simply never answer “yes.” They maintain that “Even if there is no choice but to agree with the question that has been asked, the witness should offer a complete sentence response that at least restates the question. If a plaintiff’s attorney starts to insist on a “yes or no” answer, prepare your witness to begin answers with a response such as, “Well, it depends. I do not think that I can answer ‘yes or no’ to that question. Would you like me to explain why?” They suggest these answers to possible questions:

“Q: There are rules of the road designed to keep people, like [the plaintiff] or any other driver, safe, correct? 

A: Not always. Some rules of the road, like rules about tire chains or weight limits, are designed to protect the road surface. Other rules are about saving fuel. And I think that most people can probably think of a rule or two that does not seem to have any purpose

My reaction to this advice was that evasive responses to simple questions calling for obvious agreement are a total gift to the cross examiner. What is one of the worst kinds of witness regarding credibility? Answer: An evasive one who refuses to answer simple clear questions everyone on the jury knows the answer to. Think Kelly Anne Conway for Trump making long winded speeches to simple questions which she simply ignore or the average politicians refusal to answer a direct question. You have an adverse reaction to someone who is asked “It’s wrong to steal out of pure greed isn’t it?” and responds with a long rehearsed response when everyone knows the answer to that question. No truck driver is likely to be sophisticated enough to handle this rule very well in an exam by an experienced cross examiner,

Rule #2—The “Safety Rule” Is Never Simple

The authors recommend the witness never concede questions of safety. They suggest there are exceptions to every rule and that a witness should refuse to answer with a yes or no response. They maintain the witness should respond with the response there are exceptions to every rule. They argue: “When you cut potatoes with a knife to make dinner, you will use a sharp and potentially dangerous tool. If safety is always the top priority, then you would never cut food with a knife. In short, “it depends.” The offer these answers to safety questions:

“Q: A prudent person does not needlessly endanger anyone, correct?

A: A lot of people get in their cars and drive to work in the morning. If they stayed home, they would not be endangering anyone, but is that needlessly endangering someone? Doctors are prudent people, but they still perform elective surgery. Reasonable people assess every situation and try to make the best decision that they can.

But, as indicated before, nothing is worse for witness credibility than a witness who is evasive with regard to questions the jury feel only could have one answer. For example, the question “Do you admit a speeding semi on the highway is a danger to the traveling public:” has only one common sense response if a person is being honest. Attempts to evade the honest answer creates in the mind of the jury a witness who is not honest or trustworthy because the jurors believe “everyone knows the answer to that question, why doesn’t he or she just admit it?”’

Rule #3—The Defendant’s Conduct Was Reasonable.

The authors suggest this area of questioning creates “an opportunity to lay out the defense case… Any time that a safety rule can be undercut, it should be. Know your message and work it into every answer where it might fit.”  In other words, like politicians you should have a memorized sound bite message that you repeat every time you are asked a question whether the question is close or not. You just use the question for the chance to make the speech.

Now I ask you: “What is the most common and most annoying habit of politicians?” Answer: When they ignore a question and simply make a canned speech instead. So, what kind of politician do we universally dislike and resent? Answer, the one who has a memorized message and ignores the simple question and instead makes a political speech. Jury reaction to this obvious ploy is rejection and annoyance. Your chance of witnesses following this advice without causing juror resentment is close to zero.”

Rule #4—Do Not Answer Damages Questions

 The authors recommend the witness simply refuse to answer any questions in this area. Instead of answering they recommend “…a defense witness should let the lawyer know that the question sounds like one that should be answered by lawyers.”

I don’t know how broadly they recommend defense witnesses apply this rule, but can you imagine the jury reaction to the plaintiff lawyer, discussing the accident scene, asking the witness if he or she saw the injured plaintiff at the scene and to describe the injuries plus what plaintiff was suffering, but getting that response instead of an honest answer? What about questions like whether they visited plaintiff in the hospital or called to see how they were doing or wrote any note or sent any communication. Do you think following the lawyers advice would put the witness in good light with the jury?

The risk of this advice is refusal to acknowledge the injury and or the extent of the damages as well as the harm of injury inflicted on the plaintiff strongly signals someone who isn’t a caring person or sorry for what happened to the injured person. It also suggests a lawyer coached evasion of the truth. All of these reactions from the jury are very damaging to the defendant’s case.

GENERAL IDEAS FOR CROSS EXAMINING A WITNESS WHO GIVES EVASIVE ANSWERS

What can you do about it? I believe only in very rare circumstances it is appropriate to object and ask the judge to instruct the witness to answer. One reason is most judges are reluctant to do so and often make rulings in response that are unhelpful. Even worse, having to ask for help from the judge makes the lawyer look weak and not competent.

There are some standard responses that might be appropriate such as:

  • Do you remember my question?
  • Is your answer to my question “yes”?
  • Are you meaning to be serious with that answer?
  • Let me ask you the question again.
  • Did you understand my question?

There are other ways of dealing with the problem. Jim McElhaney wrote excellent columns for the American Bar Association Journal on trial. When the witness doesn’t want to answer the question and tries avoiding it, McElhaney suggests you can also gently prod the witness with one word:” True?” Continued evasive responses can be followed with “So, it isn’t true then?” You can use the same technique regarding long and evasive speeches from a witness. For example, one can highlight that fact with a question like: “Pardon me, does that mean you did not examine the patient for that condition?

During the evasive answers, you should rarely interrupt. Nor should you argue with the witness or be angry. The jury is likely to see anger as a sign of weakness. While giving the answer you should listen patiently with a calm expression before repeating the question. Where appropriate there are times when one could write the question out for the witness and jury to see. Then ask the witness to please read and answer it.

CONCLUSION

Any one of us who have cross examined very intelligent and experienced defense experts would have a field day with a witness following these rules. We would keep the witness on the stand following these testimony rules as long a we could and end the examination with disgust of the jury.

The problem with these “rules” are that even if they were capable of reducing the impact of the primitive brain reaction it would be at the price of loss of credibility as well as anger directed at the witness. However, in the hands of a skilled cross examiner they simply don’t work. There are no direct defenses or magic formula to stop the automatic subconscious function of the primitive brain. It functions automatically and without any intellectual involvement on issues of survival and reproduction of the species. Self protection and survival threats automatically trigger the fight or flight response. Once triggered trying to change those reactions is fruitless.

The defendant has few remedies available to avoid the impact of the primitive brain self protection reaction, once it is triggered. The choices involve re-directing the blame for what happened to someone else like the plaintiff. Or by demonstrating clearly the defendant’s conduct was not and is not any threat to human safety. In addition to show it’s somebody else’s responsibility to eliminate the threat. But, on top of that, If there is evidence of negligence,, the defendant must also show there was no betrayal of duty or grossly uncaring conduct on defendant’s part that lead to injury. Otherwise a jury punishment motive will be motivated. The problem with these recommended defense rules is they don’t satisfy any of these factors that work against the defendant’s case.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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