To Impeach or Not to Impeach: That is the Question (Part One)
Impeachment is important. The ability to impeach effectively is a mandatory skill for a litigator, especially a trial lawyer.
But impeachment is not always the answer. What is the ideal scenario for any litigator? Isn’t it that the key adverse witnesses on the other side would agree with every single factual conclusion you want to establish your case? And if so, wouldn’t you rather have a witness agree with you rather than disagree with you and try to impeach her?
If so, avoid the mistake of always using documents from the other side for impeachment and, instead, use them to steer the witness. There are frequently documents from the other side that support your case. Instead of asking the witness a question and using the document to impeach, show the witness the document, build up the document’s credibility (which is usually easy if the author is the witness or someone with whom the witness is aligned, such as his boss or lawyer), and ask the witness to agree to the written statement.
This will not always work. Sometimes the witness understands the significance of the document and the point you are trying to prove, and the witness fights. But often, especially if you cloak your intentions with misdirection and asking questions out of any logical order, the witness might give you the soundbite you want. Take it; it’s better for an adverse witness to agree with you rather than fight you.