It’s not uncommon to observe a lawyer attempt to trap a witness in a “gotcha!” moment by showing them documents out of context or otherwise asking questions that can be misleading or confusing. This is especially true in a deposition, where there is no judge to sustain objections. In that setting, the witness must answer the question, even if it is posed in an unfair manner. The witness’s attorney will have an opportunity to “clean up” the record when it is her turn to ask questions, but in many instances, the witness is rattled by the unexpected question or the perceived unfairness of the examining attorney’s conduct. This can make the witness less sure of himself and can result in the witness being so cautious in answering further questions that he appears evasive and even dishonest.
A good attorney will use a break in the deposition to help the witness calm down and assure him that the issue can be dealt with effectively when the attorney asks his “clean up” questions at the end. Carefully walking the witness through the issue to show why the examining attorney’s question was unfair or stripped of necessary context can achieve two important objectives – it will re-establish the witness’s credibility and confidence, and—once the witness’s attorney cleans up the record, it should make the examining attorney think twice about trying to use that “gotcha” moment at trial.
But there are certainly lawyers who don’t hesitate to use the answer to that trick question to impeach the witness on the stand in front of the jury, even when the witness has a perfectly good explanation. These lawyers often argue that it’s their job to undermine the witness’s credibility; if the other side wants to try to clean it up, that’s their prerogative. That quick point a lawyer thinks she’s scored based on a trick question can come back and haunt her in serious ways, though. Armed with the evidence from deposition that the question was an unfair one and that the lawyer was trying to make the witness look bad, the witness’s attorney can lay all of that out for the jury when it’s his turn to ask the questions. By letting the witness explain her answer and demonstrating why the question was unfair, the witness’s attorney can quickly turn the jury against the lawyer who asked the trick questions. As we’ve described before, juries don’t like bullies. They particularly don’t like bullies who are also dishonest.
This is just one example of how a lawyer’s “sharp tactics” can blow up in her face. Throughout the course of litigation, lawyers face numerous questions about how to best dismantle their opponent’s case. But they would do well to keep in mind how their answers to those questions can affect their credibility, both with the court and the jury. Judges expect lawyers to conduct themselves professionally, as officers of the court. When they fail to live up to that expectation, they not only risk their own reputation, but their client’s interests as well. Jurors are likely to hold an attorney’s lack of credibility against their client. One line of questioning on the stand that makes the lawyer look dishonest can completely overshadow whatever good points the lawyer made substantively in his examination. The jurors might not even remember the helpful admissions the lawyer elicited because all they are thinking about is how unfairly the lawyer behaved.
There is a big difference between zealously advocating for your client and employing tactics that undermine your credibility. Experienced trial lawyers know the value of a good reputation with the court and the jurors. That reputation can take ages to build but be destroyed in an instant. Great attorneys build their cases through solid investigation, diligent preparation, and a thorough command of the law and the facts, not through cutting corners or employing cheap tricks.
Our results in jury trials speak for themselves. Over decades of courtroom experience, our attorneys have built sterling reputations. They know the importance of being trustworthy professionals and their commitment to the highest standards allows them to put our clients’ best case forward.
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