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Examining the Witness

We’ve all seen in on TV and in the movies – the lawyer approaches the witness on the stand, drills them with questions, and eventually, the witness breaks down and admits that everything was a lie. The Courtroom is shocked, the Judge bangs his gavel and the case is dismissed. Unfortunately, that type of court room drama is a little far-fetched and not quite how examining the witness plays out. When you question the witness, it’s a fine balance of asking the right questions, specifically not asking certain questions, and leading the witness down a path that they can’t back themselves out of.

I recently had a trial in Palm Beach where the Bank’s witness would answer every question the Bank’s attorney would ask, in such a nice, neat, and organized fashion. The witness didn’t have to think about the answer, and he was able to recall from memory every detail asked of him. Normally, this could be a problem. A seasoned witness, or at least one who has properly prepared, can come across as very creditable to the Judge. However, I had a funny feeling this witness didn’t know as much as he let on. In fact, I felt pretty confident that the witness was just parroting pre-approved responses. If I could get the Bank’s witness off script and force him to really answer questions he didn’t previously memorize the answer to, he might not be so creditable.

When my time came to ask the witness questions, they started off easy enough. Having him reiterate what his attorney already asked him eased him into the grove of answering questions coming from the opposite side. But when I hit him with more specific questions – how do you know the accounting is correct, what did you do specifically to ensure the principal balance is accurate, how do you know that the documents were properly transferred from the prior servicer – the rehearsed answers started to fall apart. Contradictory statements, a lot of “I don’t know”, and very general responses unraveled his prior testimony. So much so, that the Judge refused to consider some of the Bank’s documents as evidence. This is huge, because if the Judge won’t consider documents as evidence, that means there is a greater chance of the case being dismissed.

Unfortunately, we weren’t able to finish this trial because the Court ran out of time. We will pick it back up later this month. But thankfully, we are in a great position – if the witness is not creditable, and the documents the Bank relies on to prove their case won’t be considered by the Judge, dismissing the case would be the correct outcome.

Examining a witness is as much an art as it is a science. A lot of it comes from experience, being able to read the Judge and the witness, and that gut feeling of what type of questions will be the most effective. However, examining a witness is not necessarily like what you see on TV. There is a certain finesse that needs to be applied. You can’t always bully the witness with questions and sometimes a more subtle approach wins the day.

The experience an attorney can bring into the court room can make or break your case. If you’re facing a foreclosure, come speak with the experts at Loan Lawyers. Our talented group of attorney’s and staff are here to help you. Call and make an appointment today to discuss your case and how we can help keep you in your home.

Categories: Wrongful Foreclosure
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