Controlling Your Witness

These stories are reprinted with permission from Kurt Melchior's book "Off the Record: Sidebars from a Trial Lawyer's Life," published by Courthouse Steps Publishing in September. The 100-plus anecdotes share lessons learned from Melchior's almost 60 years of practice.

A seasoned, mature lawyer was a key witness in a long, important, high-risk and high-exposure case. She was to testify about her client's compliance with certain very complex government filing obligations which she had long supervised. Her credentials and her reputation were unexcelled. In fact, her filings were always so perfect that the government agency used them to train its new deputies. Her testimony was therefore critical to convince the jury that the client had been in meticulous compliance with these important obligations.

I had been in court in this case continuously for many weeks. Since I could not do this task myself, a trusted partner had prepared this witness to give her testimony. When it came time to testify, my partner brought her to the place of the trial and proudly announced that she was fully prepared. She was ready.

But I noticed something uneasy in the witness' manner. I prodded gently and quickly felt more uneasy. I asked the witness to step into a private room with me alone. Inside, I asked her whether there was something bothering her. To my astonishment, she dissolved into tears!

Once we established mutual confidence, it turned out that she was overcome with anxiety because she fully appreciated how important her testimony was. She was in agony about the responsibility which the need to give this testimony had imposed upon her. She was wracked by fear that her testimony would be unpersuasive and that she would do unintended damage to her client.

Nothing in the law books teaches how to act in such a situation. I told my witness — soon to be my friend — that I shared the same responsibility toward the client which she had expressed. Every word I said in court, every gesture I made before the jury, could well cause the jury to identify my conduct with my client's; and the client's case could be devastated at any minute during the long trial by any false step of mine. There was no room for me to agonize whether I was doing right: I simply had to be prepared, to know that I was doing my best, and then to go ahead with my job. And if I could do that, so could she.

My witness accepted this approach. She composed herself. We left our team behind, went out alone and had a nice dinner. The next day, she gave her testimony with calm assurance. She scored aces all the way. After the trial, the jurors told me how impressive she had been. But if I had not noticed the thin edge of panic that evening, who knows how it all would have gone?

The Unimaginable Anxiety of Witnesses
My witness was an accountant. I had hired him to study the value of a corporation, and he was to give testimony at the trial about the value of the shares. This value needed to be established to resolve the suit, and the expert testimony was required because the stock was held by only three or four people and thus could not be valued by market data, as with stock that is traded on the stock exchange.

The accountant had done his work carefully. There were just a few shares outstanding and he had concluded that the stock had a value of $1,000 per share, which was a good value for my client. He had sound reasons and was well prepared for cross-examination.

The trial was at a courthouse some 50 miles down the highway. We agreed that he would ride down to court with me on the morning of his testimony. I enjoyed his company; and that ride would give us a last chance to make sure that he was clear about what he would say and how he would explain his reasons. By the time we parked the car near the courthouse, I was satisfied that my witness would hit a home run.

He took the stand. I went through his professional background and his work on this case. He explained that he had a professional opinion, what work he had done to arrive at it, and that he was ready now to give his opinion about the value for each share of the stock. Duck soup.

"So what is your opinion about the value of this stock?"

"One dollar per share."

I was stunned, but tried not to show it. "Excuse me? I didn't hear you?"

"I said, one dollar per share."

"Did you say, one dollar per share?"

"Yes. That's what I said."

"That's your opinion?" "That's my opinion."

Disaster and ruin had hit me and my client. The accountant could not have been double-crossing me — or could he? Some gear must have slipped!

There was no jury in this trial. I felt I had nothing to lose.

"Excuse me, Mr. Jenkins; but do you remember riding down to this courthouse with me this morning, and telling me your opinion was that the stock was worth $1,000 per share?" I put all my anguish into that question, put everything I needed to say to him into it, and asked it as quickly as I could. I did not want what I needed to say to be disturbed by an interruption, far less an objection.

But there was no objection. The witness, however, looked nonplussed. "Isn't that what I just testified to?"

"May I have the record read back?"

The court reporter read the record; "One dollar per share."

"That's not what I meant to say." Firmly, now: "The value is $1,000 per share."

"Are you sure?" "Absolutely."

Something had briefly disconnected in the witness's brain. It happens. People get much more nervous about testifying in court than we lawyers who are there all the time realize. The witness went on to explain his position at $1,000 per share very convincingly, and no harm was done. But it would be good for judges and jurors to remember that witnesses are often unimaginably anxious and nervous, and that the smoothest witness is not necessarily the most truthful one.

Kurt Melchior is a partner and general counsel at Nossaman in San Francisco and is a member of the California Trial Lawyers Hall of Fame.