NY Personal Injury Lawyers: Take Control!


I am writing this post mostly for my fellow attorneys, but non-attorneys might also find it interesting.

One of the differences between a seasoned litigator and a novice is the ability to take total control of the witness, both at deposition and at trial.  Inexperienced attorneys, including my former self, often let witnesses run from the question, or take them down irrelevant rabbit holes, or hide behind non-answers.  But as we mature as lawyers, we learn to reign the witness in, to “let them know who’s boss”.  We also learn not to take any crap from opposing counsel.

Here’s a recent example of “taking control” from a deposition I recently had.  I was deposing a corporate witness in a convenience store slip-and-fall case.  She was trying her hardest to weasel out of answering my questions.  Look at how she tries to evade my questions:

Question: “Do you agree it would have been safer to put a wet floor sign up?”

Answer:  “We didn’t have a wet floor sign available”. (non answer!)

Question:  You did not answer my question:  Do you agree it would have been safer to have one?”

Answer:  “I think it was a pretty safe situation”.  (Still didn’t answer my question!)

Question:  “Please listen to my question carefully:  Would it have been SAFER to have a wet floor sign”.

Answer:  “Probably”. (Got her!  This will be a great question-and-answer to read to the jury to show the convenience store is liable).

Now that the witness knows who was in charge, I show her the Answer her lawyer filed in response to the lawsuit.  I point to an affirmative defense in it that reads,  “Third parties over whom defendant had no control caused or contributed to the injury-producing event”.   After having her read this affirmative defense to her, the following ensues:

Question:  “Who are those ‘third parties’ who may have caused plaintiff’s injuries?’”.

(Then came an improper objection from her attorney:  “I object, she didn’t draft the Answer, I did”.  This kind of an objection is improper because it is designed to instruct — or “coach” — the witness how to respond.  The lawyer clearly wanted the witness to respond, “I didn’t draft the Answer so how should I know”?  I then reminded her lawyer of the rules:

Me:  (to defense lawyer):  “Your objection was designed to instruct the witness on how to respond to my question. Please stop coaching the witness.”

Then I continue questioning the witness:

Question:  Who are these third-parties mentioned in your Answer?

Answer: “Ask my lawyer.  He drafted the Answer”. (Her lawyer’s coaching worked!  But I’ll get her still . . .)

Question: “I am asking you.  And you, not your lawyer, must answer. If your answer is that you do not know of any third parties responsible for this accident, say so”.

Answer:  “I am unaware of any”. (Great answer!  But let me nail it down some more . . .)

Question:  So you don’t know of any non-parties to this lawsuit who could be responsible for plaintiff’s injuries?

Answer:  No. (Got her!)

My point:  It feels good to keep control of the witness.  And it often leads to good results.

Keep safe!

Mike Bersani

Email me at:  bersani@mbk-law.com     I’d love to hear from you!

CNY and Syracuse NY Personal Injury Lawyers
Michaels Bersani Kalabanka


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