How to Chase Down an Evasive Witness at Trial -- The Escalating Approach
By Chad Colton, Markowitz Herbold PC
In my previous article, we looked at using the “escalating approach” to chase down evasive witnesses in deposition. The concept also applies in trial, but with some important modifications. Here’s how to effectively chase down an evasive witness during trial, with a key focus on understanding juror dynamics.
Understanding Juror Permission
Before diving into the techniques, it's essential to grasp the concept of juror permission. Jurors empathize with witnesses (not the lawyer), imagining themselves in the witness box and how they would feel under intense questioning. An overly aggressive cross-examination can backfire, causing jurors to side with the witness and resent the lawyer.
Before you turn up the heat on a witness, you need to have “permission” from the jurors—when they feel that the witness is not being truthful, is avoiding your questions, or simply is not being truthful. You can then help relieve their frustration by going on the attack.
Tip the Jury Off to What’s Happening
When a witness evades your question at trial, don’t immediately push the nuclear button and scold the witness. The jurors usually aren’t as attuned to the evasion as you are. Begin by politely calling out the witness’s behavior. Note that they didn’t quite answer the question and then calmly repeat your question. This approach highlights the witness’s evasion without alienating the jurors.
Maintain Calm and Patience
If the witness continues to evade, remain calm and patient. Press the witness for an answer without appearing accusatory. Your patience will show the jurors that you are reasonable and understand that the witness is going through a hard process, but that you expect an answer. Alternatively, if the question doesn’t seek a critical admission, consider moving on. By this time, jurors will likely have noticed the witness’s evasiveness on their own and they will recognize it later on when the witness isn’t answering questions.
Wait for Juror Permission to Attack
As you proceed with your questioning, pay close attention to the jurors' reactions and to the overall “feeling” of the courtroom. While this may sound a little “wu-wu,” you can feel the energy shift in the courtroom as jurors become frustrated with the witness's evasions. You’ll sense that you have their “permission” to more assertively increase the intensity of your questioning. This usually happens after the witness has avoided a few lines of cross-examination.
Escalate with Precision
When the moment is right, begin to forcefully demand answers. Clearly point out that the witness has not answered the question and insist on an answer. “I’m sorry, sir, but I’ve asked you multiple times and you haven’t answered my question.” Proceed with caution, but continue to press the issue to get an answer to your question or demonstrate the witness’s evasion.
Move to Strike or Move On
If the witnesses still evades your questions, consider whether to ask for help from the court or move on. By this point, the witness’s evasion may have been more impactful on the jury than an actual answer to your question. But if you truly need an answer—or if you sense a mild reprimand from the judge will be helpful—move to strike the answer as non-responsive. If the judge grants your motion, ask the court for an instruction that the witness answer the question. One critical word of caution, though: be absolutely sure you’re right. If the judge thinks the witness has answered the question, you’ll be the one who gets scolded in front of the jury.
Conclusion
Chasing down an evasive witness at trial requires a blend of patience, strategic escalation, and keen awareness of juror dynamics. By starting politely, maintaining calm, and escalating only when you sense you have juror permission, you can effectively expose the witness’s evasiveness without alienating the jury. Mastering this balance is key to a successful cross-examination and, ultimately, to winning at trial.
For more tips and insights on navigating high-stakes commercial disputes, stay tuned to my WYNTW videos or follow me on LinkedIn.
Chad Colton helps companies and business owners navigate high-stakes commercial litigation—when businesses, reputations and livelihoods are on the line. He often serves as parachute trial counsel, joining cases at the mid-point or on the eve of trial (sometimes literally) to develop a hard-hitting trial package. He has taken nearly 30 cases to trial across the country and served as lead counsel on some of the most high-profile commercial jury trials in the Pacific Northwest.