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.