WITNESS EXAMINATION LESSONS FROM A 60 MINUTES PROGRAM INTERVIEW WITH DONALD TRUMP

On October 25th the television program 60 Minutes featured an interview with President Donald Trump. It was ended when Trump got up and left over the questions. The interview, by Leslie Stahl was not unlike the experience of having an out of control evasive expert to cross-examine. Here are my observations about lessons we might learn that would assist us in our cross examinations of difficult witnesses.

First, what are your goals & prepare For It. You need to know what you hope to accomplish and prepare for it as well as the things that might go wrong. My impression was that Leslie approached this as if it would be a somewhat friendly interview in which she would ask questions critical of him and he would respond as a normal politician. However, Trump was in fact aggressive and argumentative. She was obviously not prepared for it. Always be fully prepared to achieve them plus be prepared for the unexpected. She clearly was not so prepared.

Second, be ready to back up your questions with documentation. If you are not prepared to back up your questions with documentation, a denial from the witness results in only an argument. Here is just one of more than several examples where Trump denied he had said things and effectively stopped the questions relating to it.

Lesley Stahl:
So you don’t want to lock up Governor Whitmer but you want to lock up-

Donald Trump:
When did I lock her up? I never said that.

Lesley Stahl:
… the Bidens, you want to lock up Obama.

Donald Trump:
When did I say lock up the Governor? I didn’t say, “Lock up the Governor.”

Lesley Stahl:
All right, but you-

Lesley Stahl:
Because you were in front of a rally of people saying it, encouraging it.

Donald Trump:
I never said it, Lesley. I never said, “Lock up the Governor.”

Lesley Stahl:
So you don’t want to lock her up?

Suppose Leslie had ready a video clip or a Fox News report and she showed it to him or had the report enlarged to show him and the viewers. He would have been put on the defensive and had to make an excuse why the documentation was false. His credibility would have been involved. If she did it each time it happened, it would create an unfavorable credibility impression

Third, be prepared for personal attacks. It is a common tactic for a witness to evade the question by responding with a personal attack on the questioner or their credibility. Avoid being distracted or drawn into an argument by knowing how to handle this situation. Trump was on the attack virtually from the start about the bias of the media and Leslie’s bias. Here is one small example.

Lesley Stahl:
I don’t want to [inaudible]. Tell me about the masks-

Donald Trump:
You’re so negative, you’re so negative. These are the biggest rallies we’ve ever had. You just come in here with a negative attitude. These are the biggest rallies we’ve ever had. We’re having numbers like we’ve never had.

Lesley Stahl:
Tell me about the masks.

If you aren’t prepared for this kind of personal attack response, you end up with an argument or you accept the accusation without responding. Neither is the right approach. Suppose she responded with: “You accuse anyone who doesn’t agree with you as being biased or negative. Why are you reluctant to answer my question?” Some response needs to be made. Ignoring it is an implied acceptance of the claim.

Fourth, know how to deal with interruptions and evasive answers. Politicians are known for their ignoring the question and reciting their talking points. Witnesses frequently do the same thing. Another common tactic is to use interruptions as a defensive weapon. Knowing what to do about this is important. Here is one example from many during the total interview involving interruptions and evasive responses.

Lesley Stahl:
What about you saying-

Donald Trump:
These are Democrat governors and they’re doing a great disservice.

Lesley Stahl:
What about you saying, let’s open up, but let’s wear masks. Let’s open up-

Donald Trump:
I say-

Lesley Stahl:
You don’t. You don’t.

Donald Trump:
I say, I’m not against masks at all-

Lesley Stahl:
But you’re not for them.

Donald Trump:
Sure I am. Wear them. Wear them. But I also say socially distance. I say

Donald Trump:
You commented on the size of the rallies.

Lesley Stahl:
I know but I’m asking

Donald Trump:
You said they’re not as big as they used to be, and I’m telling you they’re much bigger.

The first rule is to not engage in this kind of conversation exchange. You have two choices: Interrupt or wait with a pause. Then ask “why aren’t you willing to let me ask the question” or “is there a reason my question bothers you and you don’t want to answer it?’ It’s important to break the pattern with an appropriate reprimand. If repeated, you can point out the witness just did it again which puts the witness in a unfavorable light. Listening to two people interrupt each other is always a bad choice.

Fifth, get the question answered without being distracted by the witness responding with a new topic. One common tactic used by witnesses is to avoid answering the question by bringing up a different topic. You must learn to not be allowed to be distracted and to insist on the answer to your question. Here is one small example of this.

Lesley Stahl:
Well, what about the masks?

Lesley Stahl:
Are you going to say that you didn’t say this? Because I saw you say this.

Donald Trump:
No, you’re only trying to… I wish you would interview Joe Biden like you interview me. It would be so good. You know what?

Donald Trump:
Hi Mike, are you having a good time, Mike, watching? You know Mike, right? Our great Vice President.

Lesley Stahl:
I do.

Donald Trump:
You think she would ask questions like this of-

Lesley Stahl:
Wow.

Donald Trump:
No? I don’t think so, either. You think she would ask questions like this of Joe? I don’t think so.

It is important to pursue an answer to your question and not be distracted by all of the tactics of evasion we see here. Repeating the question is the simplest device. There are many others like “Let me restate my question which I would like answered.” Whatever device you choose to use make sure it is not argumentative and makes it clear the witness hasn’t answered the question

Sixth, do not lose control of being the questioner. There is a constant conflict between person asking the question and the witness responding for control over the process. It is important to maintain control because once lost it is difficult to re-obtain control. One tactic in this regard involves nonstop talking by the witness. This is only one example of losing control. Trump took over early in the interview by being allowed to ignore the question, keep talking and interruptions.

Lesley Stahl:
You said the other day to suburban woman, “Will you please like me, please, please.”

Donald Trump:
Oh, I didn’t say that. You know, that’s so misleading, the way … I say jokingly suburban women, you should love me because I’m giving you security and I got rid of the worst regulation. See, the way you said that is why people think of you and everyone else as fake news. I said kiddingly, suburban women, you should love me. I got rid of a regulation that would bring low income housing into suburbia that would destroy suburbia. And I said that in a joking way. The way you have it, it’s like I’m begging. I’m kidding. Play it. And I’m kidding. That is such a misleading question, Lesley.

Donald Trump:
Okay. What’s your next question, Lesley?

Lesley Stahl:
But you’re behind with suburban women in the polls.

Donald Trump:
I doubt it. I doubt it. I really doubt it.

Donald Trump:
So why don’t you get back to your interview and let’s go.

Again, the response should be to identify what the witness has done to avoid answering with a restatement of the question. Arguing only helps the witness evade answering.

Seventh, do not ask the judge for help. Lastly, it is always a sign of weakness when a lawyer has to appeal for help from the judge to control the witness. Avoid doing so unless absolutely necessary.

These are a few examples and brief comments about handling witnesses are difficult. Books have been written about it. Read and study the examples. Learning how to conduct proper cross-examination is essential.

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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