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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
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Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Civil action: impeaching a witness - would it be within the

Customer Question

Civil action: impeaching a witness - would it be within the scope to question a witness concerning her relationship to the plaintiff on cross simply because the witness is testifying on plaintiff's behalf?
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question, Rick. I'll be happy to help you with your concerns.

That type of questioning is perfectly reasonable. You can attempt to create a showing of bias or self-interest, or attack their relationship if necessary for your own claim. For example if the parties are intimate, that can be brought up as a means of possibly showing bias or self-interest in the testimony, and use that to try to discredit whatever comments that the witness provides.

Good luck.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 38555
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Dimitry K., Esq. and 11 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

And if the witness had gathered evidence for the plaintiff, would it be within reason to question her about why she gathered said evidence for plaintiff?


 


NOTE: You said something to me last time about only replying to one post. I am a premier member with unlimited follow-up questions, and am likely to have quite a few under impeaching a witness. So if that will be an issue for you, please opt out because I can't start a new thread on the topic, they'll lock the threads and maybe my account if I do. No hard feelings if ou do, I just don't want to get in a jamb on this.

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

No problem on your concerns, the issue only comes up if the subsequent questions are unrelated to the initial post. I do not expect to see that as a problem.

Asking the witness as to whether or not she collected evidence is permitted, so is the methods used, and the reasoning. All of those are valid questions.

Good luck.

Customer: replied 1 year ago.

So, in the process of impeaching the witness, I plan to ask questions that are worded to hopefullyh get her to say more than yes or no. If she says something that is not within the scope of direct, does that open the door for me to nail her down on her own statments, or does the door have to be opened by plaintiff's counsel on direct?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

Very good question. Generally until her counsel and her own testimony opens the door, you cannot really slam her in this case. You CAN slam her if she lies or states something contrary to what is in the record, but if she refuses to answer, you can ask the judge to compel her to respond or reword your question so as to elicit a response.

Good luck.

Customer: replied 1 year ago.

To clarify: you are saying that even if she makes a statement during cross that "opens the door" on a topic relavent to impeaching her, unless she did so on direct, I can not pursue a line of questioning on that topic?

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

I apologize, that is not quite what I meant--if she states anything at any time that can be used to impeach or attack her testimony and credibility, you are able to do so. On your cross you have more leeway to pursue and ask more leading questions, and if she does answer as you hoped, you are free to jump all over her if you have the evidence and testimony to back it up.

My extreme apologies on the confusion.

Good luck.

Customer: replied 1 year ago.

LOL I hope she does slip up so I can jump all over her...that's the plan.


 


Here's the situation: I asked 24 interrogatories and 24 admissions and he answered 25% of them with priv against self incrimination--which you and I went over in another thread if you remember. So, I'm fairly certain he's going to keep testimony tight so I can't get into any of those topics. But the witness is a vendictive hot head. If I word my questions in such a way to make her think I'm after something, she'll start interjecting additional commentary thinking she's out smarted me. The additional commentary is really what I'm after so I can jump all over her, as you put it.


 


I would think this is a common tactic for lawyers, but want to make sure I get it right. I'm sure plaintiff's counsel is going to object all over himself once he sees where I'm going. Are there any pat responses to objections related to scope and such? Is there a danger of the judge jumping on me if she sees what I'm up to?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

I think what you are trying to accomplish is ideal. Hopefully her attorney would not coach her to simply say 'yes' or 'no', which is really going to hamper your options, but if you can get her to open up, then you can most definitely go after her. This is a common tactic but hard to use because typically people on the stand are rightly suspicious and on their guard. If she knows you, she might not be as suspicious.

There are some 'pat' responses, such as that you are laying a foundation, or you can always simply restate the question, or state that it is relevant to your theory of the case.

The judge likely will not jump all over you--that is the attorney's job.

Good luck.

Customer: replied 1 year ago.

In the event witness keeps her tongue in check on cross, is my only option to call her as my witness to impeach her? I assume I can call her for that purpose? And can I ask the judge to allow me to treat her as hostile in order to ask leading questions on direct?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

You can call her as your witness, but you must have a basis for doing so. As for asking to treat her as a hostile witness, you can only do so if she refuses to comply and does not prove helpful to your questions.


Good luck.

Customer: replied 1 year ago.

What do you mean by "basis for doing so"? Basis other than to impeach her testimony for the plaintiff?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

To demand she be treated as a 'hostile' witness, she has to do something hostile first, such as not respond, question, or show by inclination that she is uncooperative. Simply calling her a hostile witness is not enough.

Good luck.

Customer: replied 1 year ago.

No, you said in order to call her as a witness I have to have a basis for doing so. Are you saying a basis other than to impeach her testimony for plaintiff? That would not be acceptable basis?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

No, that basis is fine. If you can, via testimony on direct, show the testimony that you wish for the judge to see, that is an acceptable reason to call her. But hen the judge may ask why didn't you just pursue such testimony yourself when she was a witness for the opposing party.

Good luck.

Customer: replied 1 year ago.

Maybe I'm confused after all. If witness has a vested interest and the door is never opened on direct to pursue that line of questioning, I have no choice but to call her as my witness, correct?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

In that case you do, if you can sho the judge that you were unable to push your line of question to grounds that were not covered on direct when she testified for the opposing party.

Good luck.

Customer: replied 1 year ago.

Do plaintiff's responses to discovery concerning witness qualify as opening a door for questioning the witness during trial?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

Generally anything pertaining to the case at bar can be asked of the witnes. That does include questions about their interrogatories although usually those ae used to impeach if the testimony in court differs from the answers provided to the courts in open hearing.

Good luck.

Customer: replied 1 year ago.

what does "at bar" mean?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,


A "case at bar' is literally the case that is presently being heard by the courts. So 'at bar' in this instance is simply referring to the present case.

Good luck.

Customer: replied 1 year ago.

So I can ask any witness and plaintiff questions about anything asserted by plaintiff in the pleadings, motions, discovery, affidavits, etc

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

That is correct. When the person is your witness, you are free to ask whatever you deem to pertinent and relevant. Of course the opposing party may object if your questions would appear to not be related to the case or are otherwise improper.

Good luck.

Customer: replied 1 year ago.

I meant on cross. If plaintiff asserted a topic in the motions, that he did not question the witness about on direct, can I still question her about it because it was in a motion or discovery?

Expert:  Dimitry K., Esq. replied 1 year ago.

Rick,

On cross you can bring up whatever topic you wish that is related tot his case. If the plaintiff asserted a topic, it is fair game on the witness stand. Even if a witness was not questioned about it, it can still be brought up on the first cross.

Good luck.

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Dimitry K., Esq.
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Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.