Saturday, July 26, 2008

Fear in the Court Room

Fear plays an important part in litigation.

Lawyers are afraid of losing, or perhaps intimidated by opposing counsel, and depending on the judge, they may also fear the jurist selected for the trial.

A courtroom is a always a cauldron of emotions. Lawyers are nervous, rehearsing their opening remarks, or furiously flipping through documents, looking for something remembered as being important; and the client sits at the table, gut tight with fear of the unknown, worried about how he’s going to appear to the jury, and very frightened about having to go on the stand. He’s afraid he’s not going to remember his part, and worse, he’s more afraid of the other lawyer.

Most witnesses who testify in a court room are inexperienced. They’ve never even been in a court room, and if they have, they’ve not likely been sitting next to a judge answering questions. It is a frightening event for many, if not most, witnesses. It’s especially frightening if the witness is afraid of being asked certain questions or being asked about certain aspects of the case that may be delicate. It might be the lawyer has informed the witness that there is some weaknesses in a particular area, and that if they don’t testify correctly, the case could be lost. That’s a lot of pressure on a witness, especially if he or she is a party.

On the stand, during questioning, the witness may reason this way: If I lie, I’m liable to get caught, and that is perjury, so something bad can happen, maybe even jail. Most witnesses are not knowledgeable about the penalties of perjury and assume the worst, to wit, jail. While jail is certainly a possibility, it is unusual.

As a lawyer, I always like my own witnesses to be calm and unafraid. Usually, they are, with me. It’s when the other side begins questioning them that they often get nervous and suddenly can’t remember things.

I once had a client who actually could not remember his name when asked by the judge. He was so afraid that when the judge, who was an ill-tempered despot, suddenly took him away from me during direct examination because he (the judge) wanted an answer to a question that popped into his little mind, that my client froze.

The judge, after asking his question several times, suddenly shouted: “Do you even know your name?” He was greeted by silence, whereupon, the judge said, “Seriously, what is your name?” Again, silence.

Finally, I intervened and asked the judge if I could continue asking my client questions. He leaned back, obviously frustrated, and I gently asked my client to tell the judge his name, which he did.

In another case, I was cross examining an executive. He did not appear to be nervous at all. He was pretty smooth and delivered his answers to his own lawyer in a powerful and convincing fashion. He worried me because he showed absolutely no fear. I began questioning him and he held up pretty good. He was making points with the jury. Suddenly, I paused for a long moment, then moved closer to him and stared straight into his eyes without saying a word. My stare was very unfriendly. Then, with a look and tone of voice that suggested I had some secret source of information, I asked him a question and made it sound as though I might already know the answer. I didn’t, of course, but I wanted to move him off that level of confidence he exuded.

He started to answer, then stopped. I could see he was weighing the options, calculating the damage he’d suffer if he responded with a lie and was caught, and the damage he’d suffer if he told the truth. He opted for the truth, since he assumed I already knew it, and to lie would make that truth worse. I saw the fear come into his face and eyes after that, and his voice was not the strong, vibrant one that had been wreaking havoc to my case. I played that game with him for about a half hour, getting information from him that was incredible and very useful for us.

Lawyers often play those kinds of games with people. Sometimes, they can backfire. But, sometimes they are very necessary.

There are just too many accomplished liars out there.

Fear can be a great tool for bringing out the truth.

(It can also shut a witness up quicker than duct tape.)

Copyright 2008 Voyle A. Glover, Esq.

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