Shame the Difficult Witness
Some witnesses are hard to control because they are simply unwilling to play fair. Even if you ask a simple, one-fact question they will run off at the mouth and answer questions you did not ask in order to get their soundbites in. Others will dodge and refuse to answer even the simplest, fairest questions.
With difficult witnesses, turn up the professionalism and lean into simplicity.
A witness who runs off at the mouth is a witness who needs to be shamed – politely. When the witness is finished, maybe ask the witness, “So that was a yes to my question, then?” You can repeat the simple question you asked and have the witness give you a simple yes. If necessary after multiple examples of this behavior—and always with unfailing politeness—ask the witness if she understands that her lawyer will have a chance to get up and ask whatever questions they want, and she can talk about all those other things then.
For witnesses who refuse to answer questions, ask the same, simple question again. Be polite—in fact, be especially polite. No anger. No frustration. Ask the simple question and see whether the witness chooses to answer it fairly this time.
And three additional notes.
Never ask the judge for help. Judges will sometimes step in, but it makes you look weak to ask, and it makes you look especially weak if the judge says no to your request.
Always make sure your question really was simple and fair. If not, strip out the adjectives, adverbs or characterizations and ask a simple, one-fact question with nothing else attached. Sometimes the problem is you, not the witness; you need to be sure you’re in the right.
And, finally, don’t badger the witness forever. If after multiple efforts (I usually go with three) the witness still refuses to answer, and if you’re convinced that the question is fair, then move on and make it clear you’re moving on because the witness doesn’t want to answer. I sometimes—again, politely!—just tell the witness something like, “It looks like you don’t like that question and would like me to ask another. Okay….”