Rein in your gratuitous witness

 Posted By: je froilan m. clerigo




Appearing in court and giving testimony is serious business. Every word uttered is recorded; sometimes, even the gestures of the witness find their way into the records. This is why we spend time, sometimes inordinate amount of it, conferring with, preparing and even rehearsing witnesses before they take the stand. Among others, we remind the witness to just answer the question and not offer additional information, whether on direct examination or cross examination.

When he takes the stand, however, what happens? In the beginning, he is timid, even answering inaudibly that you have to remind him to speak a little louder for the benefit of his "audience". Then, midway through the testimony, you notice him becoming a blabber mouth; he is not only not answering your questions responsively, he is even explaining his answers! On cross-examination, not only is he offering gratuitous answers instead of just concentrating on the questions, he is even interpreting the questions; sometimes, he is even arguing with the cross-examiner.

Thankfully, help sometimes comes from the judge, who admonishes the witness to just answer the question asked and no further. The unlikely source of help, however, is the opposing counsel himself, who objects and asks the court to "strike out the answer of the witness" or to remind the witness to "just answer yes or no."

We say help because when the witness blabbers, he usually hurts the party calling him, not the other side. But what most of us think is that, a witness who offers gratuitous answers must be stopped because his explanations and perorations are designed to help the party calling him; conversely, the same unresponsive answers will hurt you. That may happen. But in our experience, it is mostly the other way around.

In fact, a cross-examiner who listens attentively to what the witness offers gratuitously in his unresponsive answers during either the direct or his own cross examination will often find information helpful to his case.

For instance, in an arbitration case, the issue was whether or not the owner of the project had advanced payments for the materials on behalf of the contractor. We were representing the contractor. On cross-examination, the opposing attorney showed our witness a letter signed by him, asking the owner to advance the payments for the materials. The witness admitted that the letter was his, and that he, indeed, as representative of the contractor, requested for the advanced payment. That was that; there was no further question on whether the owner had in fact advanced the payment. In fact, the opposing lawyer did not show any receipt from the supplier of the materials which could have shown indubitably that indeed, the advance payment was actually made.

But there was the letter-request. We had to repair the damage it may have caused. The arbitrator may think that since there was a request, and there was no showing that it was denied, it may well have been granted by the owner, and the payment was indeed advanced.

So, we had a short re-direct. On re-direct examination, we showed the witness a letter from the owner, and asked him if he recognizes it; he said yes, it was the owner's response to his letter-request. We then read into the record the contents of the letter, which essentially denied the contractor's request for advanced payment. From this, we figured we could now argue that, since there was no receipt presented, coupled with the letter from the owner itself denying the request, clearly there was no advanced payment made.

Then it happened. Right after we read into the records the content of the letter, the witness volunteered, without any question from us: "but after that letter, we talked with the owner and after some negotiation, the owner actually paid the supplier." Boom.

We did not know about that; in fact, the witness himself did not know about that payment personally. He only heard it from the accounting department, to which he did not belong because he was an engineer. In truth, no payment was actually advanced (although it was deducted from the contractor's billing), precisely because of the denial. Needless to say, however, the damage was done.

Made us wonder which side this witness belonged to.