THE DIFFICULT WITNESS: THE PLAINTIFFS PERSPECTIVE By: Maureen S. Binetti, Esq. WILENTZ, GOLDMAN & SPITZER, P.A. 90 Woodbridge Center Drive Woodbridge, New Jersey 07095 (732) 855-6034 mbinetti@wilentz.com AMERICAN BAR ASSOCIATION LABOR & EMPLOYMENT SECTION ANNUAL CLE CONFERENCE November 2011 Seattle, Washington
I. INTRODUCTION There are four types of difficult witnesses and several different arenas in which they may appear. The first and most difficult is one s own client. From a plaintiffs attorney s perspective, there is no more harmful witness than one s own client, who either cannot answer a question in a straightforward manner or talks too much or too little, in addition to other potential problems. The second type of difficult witness is the adversary employee or witness who is aligned with the defendant company. In this regard, plaintiffs counsel may well opine that that type of difficult witness, who does not want to answer questions, or becomes surly, argumentative, or arrogant, is the best witness for the plaintiff. The third type of difficult witness is a neutral fact witness who may or may not be truly neutral, and/or may not want to be involved in the matter. The fourth type of difficult witness is the expert, whether one s own or the adversary s, because of their expert persona and/or because the subject matter on which they are testifying requires that the attorney examining them have the same level of expertise they have. There generally are three types of situations in which counsel may encounter the difficult witness. The first is in depositions, in which the goal is very different from a hearing or trial and thus, the way in which the difficult witness is handled may vary greatly from how he or she would be handled in front of a judge or jury. The second type of proceeding is a non-jury trial or other type of hearing before a judge or hearing officer in which, again, the way in which the difficult witness is handled varies from how counsel would approach such a witness in front of a jury. The third and most important venue in which the difficult witness may, and normally is, encountered is the jury trial, in which six or more jurors, as well as the judge, your client, the -1-
adversaries, and any observers will be watching every step you take in how you handle the difficult witness, regardless of which category of difficult witness is involved. This paper will explore practical pointers and suggestions for plaintiffs counsel in handling these types of witnesses in the various situations in which they may be encountered. II. THE DIFFICULT PLAINTIFF It is easy to say, but not as easily done, that plaintiff s counsel should never be in a position where he or she has a difficult plaintiff he or she is representing. Particularly with respect to litigation, in which the plaintiff will be the critical witness both at deposition and trial, it is essential that plaintiff s counsel have performed a thorough investigation of the potential plaintiff and have spent substantial time with that person, in order to determine whether there will be a match between plaintiff and counsel, whether the plaintiff will listen to the advice of counsel, and whether the plaintiff is in fact someone who temperamentally can sustain the burden of carrying his or her case through depositions, motions and ultimately to success at trial. The importance of determining these issues prior to commitment to what is always expensive, time consuming and emotionally draining litigation on behalf of employment plaintiffs cannot be overstated. In addition to the plaintiff s ability to withstand the rigors of litigation, and to be likeable, ultimately, to a jury, the specific background and potential problem areas for the plaintiff must be thoroughly explored from a substantive perspective. These problem areas include: prior psychological problems (all such records must be reviewed prior to commencing litigation by the plaintiff s attorney), convictions/arrests, alcohol and drug use, other stressors in the plaintiff s life, including marital problems and problems with children, resume fraud ( exaggeration ), performance reviews and history, difficulties in prior and/or subsequent jobs, and the like. -2-
In addition, the plaintiff s attorney must spend substantial time with the potential plaintiff in order to discuss in detail the difficulties of litigation, explain what can be expected through trial and eventual appeals, talk about realistic expectations for settlement and/or verdict, and, in general, ensure as much as possible that the plaintiff not only can, but is willing to, endure the rigors of such litigation. Particularly with respect to results from litigation, the plaintiff s attorney must ensure that the client does not have unrealistic expectations. These assurances will go a long way in avoiding a difficult plaintiff/witness. With respect to the merits of the case, prior to starting litigation, counsel must gather as much information as possible to defeat the inevitable summary judgment motion. The potential plaintiff must understand the legal and factual concepts which will have to be proven in the case. Plaintiff s counsel should ensure, prior to commencing litigation, that his or her client can answer critical questions truthfully, in a deposition under oath, such as why he or she believes discrimination/retaliation/illegal harassment has occurred. If the plaintiff is not able to convince counsel that he or she truly believes that he or she has been treated illegally and can testify to same under oath, that case should not be taken as, inevitably, that plaintiff will be a difficult witness in depositions who will not defeat summary judgment. After the litigation is commenced, the plaintiff s attorney must do all he or she can to minimize the chances that the plaintiff will be a difficult witness, including carefully reviewing all written discovery prior to the plaintiff s deposition, and ensuring that he or she has all the information reasonably necessary in order to properly prepare his or her client for the deposition. The importance of preparing the plaintiff for his or her deposition cannot be overemphasized. In many cases, the plaintiff is deposed for multiple days (in jurisdictions where there is no -3-
limitation on the amount of hours for a deposition). The author has seen plaintiffs deposed for a minimum of one full day, and most often, for two or three days. The rule of thumb for preparation of any witness for a deposition is to prepare that witness for double the time it is anticipated the deposition will take. Many employment cases are won or lost on summary judgment, and often cases which are lost are lost because of the inadequate deposition testimony of the plaintiff. Plaintiff should be thoroughly prepared by reviewing every relevant document and fact, and questioned repeatedly in the manner in which it is anticipated that defense counsel will question the plaintiff at the deposition. The plaintiff also should be clearly warned that the conduct of the deposition, while more informal than in a court or hearing venue, is just as binding as if he or she were in court. Moreover, the plaintiff should be warned that if an adversary is aggressive or hostile, he or she should not react, but should remain calm and pleasant at all times. Conversely, the adversary who is friendly, courteous, polite and just wants to hear the plaintiff s story is even more dangerous. The plaintiff should be warned to remember that the adversary is not his or her friend, but is attempting to show that he or she does not have a case. Since in most jurisdictions, objections at deposition are limited, it should be explained to the plaintiff that, absent some outrageous conduct by the adversary, it is doubtful that the plaintiff s attorney will be able to intervene substantially to aid him or her in her deposition. If the deposition is videotaped, these instructions must be taken to another level. The plaintiff must be told that it is likely that snapshots of the videotape deposition will be shown at trial by the adversary, as everything the plaintiff says is deemed an admission. The plaintiff not only must speak clearly, politely, and calmly (or where appropriate, show emotion, if that comes naturally to the plaintiff), but must understand that every grimace and facial nuance will be -4-
recorded. However, the plaintiff also should be assured that if the adversary appears to be bullying the plaintiff, and/or has an aggressive tone on the video, and the plaintiff remains calm, that will adversely affect the defendant. Some of the difficulties with plaintiffs may not be entirely within their or counsel s control. For example, many plaintiffs are not highly educated, are unused to the formality of the legal process, and simply do not have the ability to comprehend all of the nuances of their case. Those plaintiffs very often are the most likeable to the jury, as they are real people, and they should be encouraged to be themselves and not be nervous that they are not smart enough. However, there are certain critical aspects of their testimony which they must be able to articulate clearly (while not necessarily in a sophisticated manner), such as why they believe they have been treated illegally. They also should be encouraged to speak openly and thoroughly about any emotional distress they may have experienced as a result of defendant s conduct. Indeed, with respect to all plaintiffs, this area of inquiry should bear an opposite instruction to that normally given to witnesses, i.e., that while with respect to other questions by adverse counsel, they should simply answer the question asked and not elaborate, with respect to openended questions about damages and the like, they should feel free to elaborate as much as possible. The difficulties for the plaintiff are multiplied manyfold when the time comes for a hearing or trial, particularly a jury trial. There are very few things that are more difficult than sitting in a witness box as a plaintiff, knowing that one s entire working life (which in many cases is a large part of one s self-esteem), and one s character, will be attacked by defendant in front of six or more people who do not know the plaintiff. Every plaintiff should be brought to the courtroom ahead of time to acclimate the plaintiff to where he or she will be sitting, where -5-
the judge will be sitting, where the jury will be sitting, and the like. If possible, practicing testimony in a courtroom or a simulated courtroom will aid the plaintiff. The plaintiff also needs to understand that the only kinds of questions his or her counsel will be permitted to ask him or her at trial will be open-ended, in that the plaintiff will need to be able to tell a story, with interjections by counsel to keep that story going. It is very difficult for any plaintiff to tell a story without specific cues. A difficult plaintiff at trial is one who cannot tell the story, and/or appears cold, or so whiny that he or she may lose whatever sympathy the jury would otherwise would have. A plaintiff should be told that he or she may be able to elaborate on cross-examination, but that he or she needs to concentrate on simply answering defense counsel s questions, as they will be designed to make it difficult for the plaintiff. A difficult plaintiff at trial is one who fights with defense counsel, despite advice to remain pleasant and polite throughout. This is not to say that a plaintiff should not show outrage when they are accused of lying or other such conduct, but it needs to be genuine shock, rather than anger or lashing out. A strategy for plaintiff s counsel at trial who has a difficult plaintiff, and/or has a difficult story for the plaintiff to tell, is to call the adverse witnesses on plaintiff s case first, prior to the plaintiff. This may be utilized when most of the facts that support the plaintiff s claim are in possession of witnesses who may be disliked by the jury (more than the plaintiff perhaps!). The author normally does so, even where the plaintiff is not a difficult plaintiff, or the case is not necessarily shown primarily through defendant s witnesses. While a risky tactic, if defendant s witnesses are so unsympathetic or so helpful to plaintiff that the jury can be persuaded in plaintiff s favor before plaintiff even gets on the witness stand to tell his or her story, in the author s experience, a favorable verdict for the plaintiff often results. -6-
Of course, when all else fails with a difficult plaintiff, there is only one solution: Settle! III. THE DIFFICULT ADVERSE WITNESS The difficult adverse witness comes in two forms: (1) the witness who, despite counsel s best efforts, cannot be shaken and who comes across as a credible witness to the factfinder; and (2) the difficult witness who is truly difficult, i.e., will not answer a question in a straightforward manner, and generally makes it difficult for counsel to elicit the information he or she wishes to elicit. In the author s estimation, the second type of witness usually is a very good witness for the plaintiff. So long as plaintiff s counsel maintains a polite and courteous demeanor while questioning this type of witness, particularly at trial, the more that witness becomes difficult, the more the jury (and even a judge as factfinder) is inclined to dislike the witness. However, this requires that counsel always be courteous and polite, while persisting in getting the answers to his or her questions throughout what ordinarily will be a grueling and aggravating examination. This does not mean that counsel should not persist in insisting upon an answer to his or her question, but it must be done in a polite manner, rather than becoming angry or exasperated. In addition, unless counsel is convinced that the judge and the jury already are on his or her side, the author would not recommend asking the judge for assistance with a recalcitrant adverse witness. The judge, and certainly the jury, most likely will expect that counsel can handle such a witness and should not have to ask for help. The difficulty with persisting in getting an answer to a question is that it is likely that defense counsel will at some point object and/or the judge will interject and tell counsel to move on. This can be difficult situation for counsel who is not able to get a straight answer from the witness. However, depending upon the judge, counsel should politely point this out to the court, as well as to the jury, and suggest that he or she merely is attempting to get an answer -7-
to an important question which has not yet been given. If counsel does this properly, the jury will understand. Obviously if the Court interjects, it is more difficult than if the adversary simply objects. Counsel should politely respond to the Court, in front of the jury if possible, that he or she certainly does not intend to delay matters, but that it is important that an answer to that question be given by the witness. If the Court insists on moving on, counsel obviously should not argue, but should use the fact that the witness would not answer a question in a straightforward and/or polite matter in closing, particularly if counsel is able to remind the jury that he or she at all times was courteous and polite, and gave the witness the opportunity to properly respond. The best example the author can give as to how this type of difficult defense witness can be invaluable to the plaintiff is from a recent trial she handled. In a very complicated and messy retaliation case, the individual defendant sat at the defense table for more than a week of trial as the author called numerous defense witnesses to begin her case. She then called the individual defendant late on a Friday afternoon to begin his testimony. He was at that point apparently so angry that he could not control himself for the last 20 minutes of the day, and would not answer one question in a polite or courteous manner. He was so obnoxious with respect to innocuous questions, such as how long he had worked for the defendant, for the last 20 minutes on a Friday afternoon that the author is convinced that the jury determined that day that he had done the sexually harassing behavior of which the plaintiff complained, as well as orchestrated a complicated scheme of retaliation against the plaintiff. Over the weekend, it was clear that defense counsel spent hours with this individual coaching him on how to respond as, come Monday morning, when plaintiff s counsel resumed her examination of him, he was at all times courteous and polite, and remained so for two -8-
additional days of testimony. However, the damage clearly was done, as the jury had seen him at his worst. In fact, on defendant s motion for a new trial after plaintiff s verdict, the judge specifically commented on his behavior for a mere 20 minutes on a Friday afternoon. While this scenario does not happen very often, it highlights how the most difficult witness on the defense side (or on the plaintiff s side, if the positions are reversed) can be the best witness for plaintiff. The other type of difficult adverse witness is not helpful to plaintiff, that is, the witness who is smart without showing arrogance, prepared without looking prepared, and courteous and polite at all times. While plaintiff s counsel knows the witness is not in any way objective, he or she appears to be objective and fair, and does not go out of his or her way to destroy the plaintiff, but merely states the facts as the company sees them, and connects with the jury by eye contact and demeanor when answering questions. This is the most dangerous witness for plaintiff. In most cases, the most plaintiff s counsel can do is attempt to neutralize that witness. To do this, plaintiff s counsel must first attempt to get from that witness all that he or she can glean that is favorable to the plaintiff. In other words, plaintiff s counsel must attempt to use that witness, who is attempting to appear neutral, objective and fair, to concede aspects of plaintiff s case. Then, assuming that the witness continues to cooperate with plaintiff s counsel, in some cases, plaintiff s counsel can attempt to show that he or she is puzzled by the fact that this fair witness appears to be supporting what other defense witnesses, who do not portray themselves as well, have said or done improperly. Witnesses are only human, and all have sore spots which in many cases can be explored to reveal to the jury their true nature. Again, this not easy to do, and it may be that if that witness is not critical, plaintiff s counsel may determine to ask that witness very little and merely attempt on summation to minimize that witness s importance to the case. -9-
The important venue for this type of difficult witness is a hearing or trial, as the deposition will show counsel how good of a witness he or she is, and how important his or her information is, but is not as important with respect to overcoming this type of demeanor. IV. THE DIFFICULT THIRD-PARTY WITNESS The third-party witness who purportedly is objective, but is not in fact objective, and/or who does not want to be involved in the case, either for the plaintiff or the defendant, can be a difficult witness. In the author s experience, the most difficult type of third-party witnesses for the plaintiff are the current employees plaintiffs often believe will support them, but in most cases do not do so. In the author s experience, there are very few current employees who will in any way support a plaintiff, as they fear for their own jobs and, understandably perhaps, do not tell the truth at deposition or trial. Attempting to convince this type of witness, or a witness who simply does not want to get involved and must be subpoenaed, to nevertheless cooperate and tell the truth is extremely difficult. In addition, the author has had witnesses who have been interviewed by her associates and have given information very damaging to the defendant, but refused to sign an affidavit or certification, and ultimately had to be deposed, only to change everything they previously said, either because they have been convinced by the defendant to do so, or because they have determined that it is in their self interest to do so. That witness must be impeached at deposition, although that can be difficult if the witness is now suddenly being represented by defense counsel, as has occurred to the author, and thus, the later conversations with defense counsel (after which they changed their stories) may not be revealed. That witness will have to be impeached at trial by the testimony of the associate or other person who originally interviewed him or her, which creates credibility difficulties with respect to arguing that that person was -10-
telling the truth when they gave favorable information for the plaintiff, but now is lying. The incentive to lie, when the witness purportedly is objective, is difficult to show a jury. It is more likely that a witness who should know relevant facts does not want to be involved, and claims not to remember or know anything relevant. Use of documents, other testimony, and the like may be the only way to attempt to pry from that witness relevant information. Handling that witness politely and courteously, despite what might be mounting frustration with the witness, also may go a long way to convincing him or her that the experience will not be as horrific as he or she thinks. Obviously, the witness who has to be subpoenaed without talking to him or her creates a difficult situation, as counsel is operating in the dark and does not know how difficult that witness will be. In addition, if the witness is a former employee, defense counsel likely will attempt to impeach his or her credibility (as such persons often are good witnesses for plaintiff) by attempting to show that he or she is disgruntled and/or has his or her own axe to grind. Plaintiff s counsel must be prepared to counter that inference by ensuring that, while the witness may not be fond of the defendant, he or she comes across to the factfinder as telling the truth, as he or she is free to do so, now that he or she no longer works for the defendant. V. THE EXPERT WITNESS The adverse expert witness who comes across as arrogant and condescending is a good witness for the plaintiff. If the expert talks down to the jury or to counsel, obviously, the witness is not going to be liked by a jury, although it is less likely in a non-jury situation that that type of attitude will affect a judge or other professional factfinder. The adverse expert who comes across as collegial and as simply explaining the concepts to the jury as equals is a much more difficult witness. It is imperative that plaintiff s counsel be as familiar with the area of specialty as the expert is him- or herself, in order to cross-examine that witness. If counsel is not -11-
so prepared, counsel will never be able to conduct a proper examination of the expert, and the expert s testimony will remain essentially unrebutted. These difficulties also are encountered with one s own expert. The author has dealt with experts, particularly psychological/psychiatric experts, who may be very skilled in their fields, but are not good witnesses, either because they do not know how to explain concepts to the general public or are unwilling to do so. Substantial time must be spent with those witnesses (who do not want to spend the time and are extremely expensive), in order to prepare them to properly explain the relevant concepts, particularly to a jury. The most difficult aspect of preparing one s own expert for deposition and trial is getting them to spend the time necessary to do it properly (after they have prepared a proper report), at very considerable expense. One s own difficult expert can destroy plaintiff s claim for damages, which may well be a large part of the case. A related problem involves utilization of treating physicians or therapists as fact witnesses at deposition and trial. Very often, these treaters do not want to have anything to do with litigation or lawyers, and are extremely reluctant to testify. They often must be subpoenaed and involuntarily brought to trial (although for depositions, it is the defendant who normally bears their wrath), and great care must be taken to attempt to work around their schedules and make it as convenient as possible. In this connection, the preparation of a treating doctor (normally a psychiatrist or therapist) for deposition or trial is virtually impossible. Therefore, the difficulty with this type of witness is not only getting them to testify, but not knowing whether they will testify properly. In the author s experience, very few physicians are cooperative in this respect and, therefore, they may be, along with experts, some of the most difficult witnesses to handle. -12-
VI. WITNESSES IN DIFFERENT ARENAS As set forth above, the context for the difficult witness will govern how that witness is handled. Absent a videotape of a deposition, or extreme conduct in a normal deposition, the tone of the deposition normally will not come through in the written word. However, the author always assumes that the tone will in fact come through, and attempts to use that, even where there is no videotape, particularly if such testimony can be read to a jury. However, ordinarily, even an adversarial deposition will not have the same impact with respect to a difficult witness (except for parties) as will the conduct of handling that witness at a hearing or a jury trial. At a hearing without a jury, in the author s experience, the serious concerns counsel has with how things appear to a factfinder who is not an expert in the law do not ordinarily apply. However, counsel should be careful in letting a difficult witness give testimony that is harmful or in assuming that facts which are necessary to be gleaned from that witness are understood by the factfinder. Obviously, if the testimony is not in the record, it ordinarily cannot be assumed or inferred. However, the drama which is involved in examining or cross-examining the difficult witness in front of a jury should not, and normally does not, take place in front of a professional factfinder. The types of things a jury will focus on may be seen as inconsequential by counsel. Things like nervous tics, repeated questions, and an annoying manner of asking or answering questions may or may not affect a professional factfinder, but often will affect a jury. This conclusion is based upon interviews of jurors from real and mock trials. Counsel must remember that every action and nuance of their demeanor, appearance and conduct is watched by the jurors, and that they often attach much more significance to trivial things than one would expect. Therefore, in general, the importance of maintaining a polite and courteous manner of examining the difficult witness in front of a jury is paramount. Adversity, including with respect -13-
to a brutal examination of your client, the plaintiff, by the adverse counsel, also must be carefully handled. While it is important to protect the plaintiff from improper questions (and to protect the plaintiff from himself if he is hurting himself as a witness), it is important to show the jury that that is because the other side is being unfair or unreasonable, as opposed to the plaintiff needing help to truthfully tell his story. Therefore, while objections may need to be made, and the flow and rhythm of adverse counsel s questioning disrupted, it must be done in a courteous manner which conveys to the jury that counsel simply is trying to ensure that it hears the full, fair and truthful story of the case. VII. CONCLUSION No litigation or trial is free from one or more difficult witnesses. All plaintiffs counsel can hope for is that the difficult witness is not the plaintiff, and that the difficult witness on the defense side is one who in fact helps the plaintiff by acting inappropriately toward the plaintiff, his or her counsel, and/or the jury. Plaintiff s counsel must always maintain (at least on the surface) a calm professionalism that the difficult witness cannot shake, even during a long and difficult trial, with little sleep, when that demeanor is almost impossible to maintain. -14-