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November 16, 2004

I am not a witness

Ok. Being a witness in a trial is hard. The better the lawyers, the harder it is. Or maybe it's just being a pretend witness in a mock trial that's hard. I've now performed the role of the latter twice, and both times I've found myself underprepared and too easily flustered by the cross examination. They fluster you by picking an obscure word or fact from your earlier deposition (sworn statement) to quote back to you, asking you if you said that before in an accusing way that makes it seem like you probably committed a crime if you did say that. It's not fun. Yesterday I was supposed to be a doctor testifying about a former patient who was now dead. The patient's insurance company was trying to prove that he committed suicide, because then the insurance company wouldn't have to pay his wife's claim on his life insurance policy. So I was testifying about a conversation I had with the deceased several years before he died, and on cross examination the attorney asked me: “Didn't you say that he feared he might not be able to take care of himself or his family?” Sitting on the stand, I knew he had said he was worried about taking care of his family, but did he say he was worried about himself, or was the attorney trying to get me to extend my testimony in a damaging way? And then, in hindsight, the question doesn't matter anyway. Sure, he said he was worried about whether he could take care of himself; he just lost a big promotion and was worried about his future in general. Nothing unusual about that. That's a long way from any sort of suggestion he might kill himself. But the way the question comes at you it's not a question, it's an accusation, and it's easy to get defensive. Get defensive, and you look like you've got something to hide. Juries don't like that, and then you might cause the poor impoverished widow to lose her case against this nasty insurance company. That would be sad. But while I'm a pretty terrible witness, these mock trial things are still fun. And now I know that if I'm ever cross-examining a witness, one good strategy is to make my questions sound like accusations, and then the witness is mine! (insert evil laughtrack and perhaps an evil Mr. Burns fingertip temple for good measure here).

Posted November 16, 2004 07:30 AM | 2L

I had the same problem this weekend. The deposition that the witnesses were given to read was different enough from the information the attorneys were working from, and I was asked questions about things I had no clue about. But overall, it's so much fun to watch the attorneys flounder when you're not sure of what they're asking about! :)

Posted by: Shelley at November 16, 2004 10:25 AM

I loved our version of trial ad. The mock trial at the end of the semester was quite a bit of work - but a fun experience. My Dad played the part of the felony murder defendant. He did an excellent job, I must say. Still, it's difficult to deal with cross examination as a wit when you are just 'pretending'. And it's funny how the wits can seem 'nervous' even though they've obviously done nothing wrong. Makes you wonder if our jury system of weighing credibility based on wit testimony (and partial on wit demeanor)is an effective one.

Posted by: Kelly at November 16, 2004 02:32 PM

I witnessed for my friends last night for FOUR hours (by the time all was said and done) and am heading back in tonight in another role. All I can say is, there are some people that owe me after this!

Posted by: energy spatula at November 16, 2004 03:19 PM

Last weekend I was a defense expert witness.. the guy who crossed me was killing me! Kept asking me really wack questions in serious double negative. I had a hard enough time trying to remember stuff from CSI (I was playing a forensic pathologist) without the guy asking me if it was not impossible for a possible possibility. At least they paid us $25 to do it.

Posted by: Raking Lunatic at November 24, 2004 04:16 AM

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