Problem witnesses: coping with character attacks.

The credo of Willie Stark, the protagonist in Robert Penn Warren's novel, All the King's Men, was, "There is always something." Stark's political success was due in large measure to his ruthless willingness to disgrace opponents by finding and exposing the "something" lurking in their closets.

The maxim captures an equally unsubtle strategy used in civil lawsuits: discrediting an opposing witness with nuggets of embarrassing information painstakingly mined from the past. Consider the following examples:

* Dr. Jeffrey Wigand, a scientist and former vice president of Brown & Williamson Corp., blows the whistle on management's alleged knowledge of the addictive nature of nicotine in its cigarettes. The company's lawyers promptly compile a 500-page dossier, entitled "The Misconduct of Jeffrey S. Wigand," relating negative inferences and rumors extracted from court records, credit card bills, resumes, driver's license applications, and letters--all purporting to show that he is not to be believed.(1)

* ADM executive Mark Whitacre is revealed as a Justice Department informer. Within weeks stories are circulating that he allegedly had embezzled millions from the company and had exaggerated his already impressive educational credentials.(2)

* Investigators track down guests invited to a plaintiff's wedding in an attempt to discredit former employees expected to testify against a company.(3)

Many civil actions--including whistleblower, price-fixing, products liability, toxic tort, and securities fraud litigation --tend to involve witnesses who are subject to impeachment. Often, knowledgeable witnesses in these cases may themselves have been involved in wrongdoing. Many have an ax to grind or may stand to benefit from the lawsuit.

Even generally law-abiding witnesses with no stake in the litigation may find themselves under assault for personal failings having little or nothing to do with the lawsuit but potentially bearing on their credibility. With few holds barred in trying to discredit an adverse witness and easy access to databases storing personal information, almost anyone could turn out to be a problem witness.

Civil litigators must learn how to use strategies developed by prosecutors who deal with criminal informants. Criminal witnesses may be unpalatable, but they are not necessarily unbelievable. The skillful prosecutor allows the jury to buy the story despite its distaste for the witness's character flaws and past bad actions.

Obviously, there are limits on whether a problem witness can be used effectively. The more benign the conduct at issue in the lawsuit, the less likely one would be to call a witness who could be impeached by a horrific past. Some witnesses, either because of the sheer magnitude of their past misconduct or because they don't have the temperament to stand up under fire, might not be usable. The practical question, however, is how to present a problem witness when there is no choice.

Know the Worst

A lawyer who calls a potential problem witness must know the worst about the person. Lawyers are inclined to ignore or gloss over flaws in witnesses who have something helpful to say. But if you find that your whistleblower cheated on expense reports, you can't just pray that the other side won't find out. In many civil cases, just as in almost all criminal cases, the other side is going to know your witnesses at least as well as you do.

Sticking your head in the sand to avoid knowing unpleasant information might provide some temporary relief from the heat, but eventually you arc going to suffocate. When a client's or witness's behavior suggests an embarrassing line of cross-examination, the careful lawyer must thoroughly explore the issue. Otherwise, the jury may decide that you aren't to be believed.

Furthermore, if you don't know the worst, you can't prevent it from coming out. If you know where the likely impeachment is coming from, you can always move in limine to preclude certain cross-examination.

A witness who is unprepared is likely to lie instinctively if confronted for the first time on the witness stand with information about past bad acts. Whenever that reflexive lie is exposed through cross-examination, the witness will have self-destructed.

One way of learning the worst about a witness is to review all documents in which past untruths or other problems may appear. Expense reports and employment applications, evaluations, and other materials from personnel files are likely sources. In most circumstances, however, a review of documents won't cover all the bases.

Unfortunately, the most practical way to find out the worst is also the most awkward: asking the witness directly. Difficult subjects can usually be broached without alienating or offending if the questioning is done diplomatically.

For example, you may give examples of prior bad acts that could be used in cross-examination, starting with relatively far-fetched examples and proceeding to the more likely. Frequently the witness, without being asked, will volunteer doubts about being cross-examined on certain subjects.

If the witness does not volunteer the potential impeachment, you will have to ask whether the person knows of anything that could be embarrassing. It may help to let the witness know that a probing cross-examination is standard operating procedure and that almost no one is immune.

Pre-try the Witness

Whether the witness is a college president or the boss of a street crew, he or she needs to be "pre-tried" before testifying. A lawyer who thinks any witness can be prepared by simply showing a "do's and don'ts" videotape or sketching out the general subject areas is practicing self-delusion; a lawyer who does this with a problem witness is inviting disaster.

Except when doing so would be literally impossible, you should go through direct examination with the witness several times, asking probing questions. This rehearsal is a critical part of establishing rapport with the witness and conveying the story persuasively. This is particularly important with a witness who faces substantial bad-acts impeachment, because the coherence of the direct testimony may be all that the jury will have to balance against negatives emphasized on cross-examination.

Many lawyers don't like to focus on the weaknesses of a case, so they make only a desultory effort to prepare a witness for cross-examination. However, cases involving problem witnesses or character issues may well turn on the effectiveness of cross.

Preparing does not mean merely telling a witness what to expect or what kinds of questions might be asked. You've got to do the cross-examination aggressively yourself, trying to predict any tack your opponent might take. The witness may find this process disconcerting, and you may feel that you are using up goodwill, but the more pitfalls you uncover, the better the witness is going to be on the stand.

For example, in a business case a witness may be asked on cross-examination whether his or her company would benefit if the defendants were found liable and had to pay a substantial judgment. From the cross-examiner's standpoint, this is a low-risk inquiry since the witness has only two choices: either to admit the obvious and thereby concede a potential bias or to deny it falsely. An unprepared witness may select the second option, permitting the cross-examiner to demonstrate the bias in a way that will leave a lasting impression on the jury. A properly prepared witness will candidly admit that a verdict for the plaintiff would help his or her company's position.

Nothing is off the record when preparing a nonclient witness. Anything said may be repeated in court. This means you must be cautious, but it does not reduce the process of preparing a problem witness to simply tiptoeing around land mines.

Pre-trial preparation of your witness also presents an opportunity to convey to the jury information that underscores your own sincerity and forthrightness. This opportunity cannot be captured by ritually telling the witness to "tell the truth." Instead, the witness must be shown, repeatedly, that what matters is getting out the facts.

For example, a witness may reveal something that helps the opponent's case and then say, "You probably didn't want to hear that." The effective lawyer will pounce on that chance to clarify the proper role of the witness. The witness is supposed to be a neutral narrator of facts, not an advocate. Tell the witness not to worry about what helps or hurts a particular side, that all witnesses will present some evidence that helps and some that hurts but that the evidence on the plaintiff's side is powerful.

Complete candor from the witness is likely to be crucial, especially in a case involving a problem witness. If the witness lies about peripheral matters or is too one-sided when testifying, the effect of the bad-character cross on the jury will be overwhelming.

Meet the Impeachment Head-On

Blunting impeachment of a problem witness requires an offensive strategy from the very start of trial. The problems should be mentioned in the opening statement. If not, your opponent's opening will have two points to make instead of one: Your witness is a liar, and you are trying to hide it.

This doesn't mean that the focus of your opening should be a point-by-point attack on your own witness's credibility. It is important, though, once you've told the jury your story of the case, to also tell them what problems exist and that this witness cannot be taken at face value.(4) If the principal impeachment is the witness's participation in the misconduct at issue in the case, you can turn the impeachment to your advantage by explaining that jurors will hear from a witness who has a unique insight into the situation.

Meeting the impeachment head-on becomes even more urgent when the problem witness takes the stand. Federal Rule of Evidence 607 lets any party attack the credibility of the witness, and the courts have recognized the proponent's right to do so in order to blunt the impact of cross-examination.(5) Most lawyers recognize that there are benefits to be reaped by "fronting" the witness's problems on direct examination.

One common but misguided strategy is to try to bury the impeachment information in the middle of the examination. This strategy, clever as it sounds, can backfire. Good direct examinations have an internal logic that the jury can follow, and the impeaching facts fit in a logical place.

For example, in a criminal case where the witness has immunity, the jury wants to know why the witness is willing to incriminate himself. There is no logic in waiting to tell them. Prior lies or evasions about the subject of the testimony belong right after the witness tells his or her current version of the story. Other impeaching facts may fit chronologically. Disrupting the logical flow of information to hide these facts may have just the opposite effect.

A related mistake is trying to minimize the impact of impeachment by skating quickly over the problems on direct examination without fully revealing them. For example, in the case of a corrupt city councilman who admitted extortion and misuse of public office and also skimmed money from his private business, the lawyer might be tempted to ignore or gloss over the relatively minor private business infraction.(6) But in skimming money from the business, the witness was cheating his business partner, who happened to be his father.

Many jurors would regard that conduct to be far more significant than cheating the IRS. Minimizing this scam on direct only to have it magnified on cross would make the witness look less credible.

Minimizing the wrongdoing suggests some confusion over the purpose of fronting the impeachment. If you don't bring out all the significant impeachment, the other side will. Indeed, a skillful cross-examiner will convey not only that the witness (and you) only touched superficially on impeachment on direct, but that the witness (and you) intentionally suppressed the most damning elements. The task on direct is to take the wind out of the cross-examiner's sails by presenting a complete picture framed in your terms.

None of this is to say that all anti-character evidence must be fronted in direct examination. Discretion is vital. You want to front impeachment that will hurt the witness and is likely to be used on cross, but you don't want to confuse the jury. Several categories of potential impeachment are just as well left alone on direct:

* Trivia, and likely inadmissible acts of misconduct can be ignored. Many judges will rule out these lines of cross before trial. Even if not ruled out, some impeachment is so removed fro,n the facts of the case and so unlikely to be allowed that fronting would be a mistake. For instance, at a recent ABA Antitrust Section tria, demonstration, the defense tried to impeach a co-conspirator in a price-fixing case with the a,legation that he had cheated in college 20 years earlier. Few judges would admit that evidence, and even fewer jurors are likely to be persuaded by it.

* Counsel should not front impeachment that will make the other side look bad for having found it and brought it up. If the impeachment relates to an intensely personal matter or could only have been found through an intrusive investigation, it is better to let it come out on cross-examination.

* Sometimes the civil lawyer can roll the dice and hope the other side doesn't know about the impeaching information. In most circumstances, this is too big a risk. The only time you should take this kind of chance is when the witness absolutely demands as a condition of testifying that you not ask about a specified subject matter.

Keep Your Distance

No matter what you do to prepare a witness and no matter how thoroughly impeachment is exposed on direct examination, some dirt from cross-examination is going to stick. One significant part of dealing with the dirt lies in how the jurors see your relationship with the witness.

Keep your distance. On direct examination convey disapproval, not understanding, with your tone of voice when eliciting evidence of bad acts. Also, you must correct a witness who strays from the truth, even to the point of introducing inconsistent prior testimony.

Think of it this way: If the witness has lied to help you, the prior inconsistency will come out on cross-examination anyway. If the witness has lied to hurt you, you need to get the truth into evidence substantively under Federal Rule of Evidence 801 (d)(1)(A). And if the witness has changed testimony unintentionally, prompt impeachment is the most graceful method of correcting the story that is being told.

The alternatives are painful to watch. Lawyers either ignore the contradiction or stumble through "refreshing recollection" of the witness--a peculiarly inept tool when the witness has not claimed to forget anything but has intentionally changed a story.

The jury will be favorably impressed with your confidence in the strength of your case when you don't allow a witness to get away with untruthfulness.

Keeping your distance a,so means that you cannot be the witness's protector during cross-examination. Resign yourself to sitting there and taking it without a lot of objections. It is difficult to maintain an impression of distance when you are popping up every few minutes to defend the witness.

Part of keeping your distance from the witness is being candid with jurors in closing. This means not trying to convince them that a lifelong con artist should be believed without reservation. You must convey that it is your theory that the witness may have been unreliable in general but has given true testimony in this case. If you fall into the trap of debating the witness's character, both your credibility and the jury's assessment of your theory will suffer.

Fundamental Logic

Of course, there is an infinite variety of cases and problem witnesses, and one can easily think of examples where some of these rules for coping with character attacks don't fit. The fundamental logic underlying these principles, however, is immutable: The facts are what they are, and you've got to deal with the damaging ones.

As one commentator put it in a distinctly different context, "Ye shall know the truth, and the truth shall make you free."

Notes

(1.) Suein L. Hwang & Milo Geyelin, Brown and Williamson Has 500-Page Dossier Attacking Chief Critic, Wall St. J., Feb. 1, 1996, at A1. (2.) Michael Arndt & George Gunsett, FBI Mole Sorry About ADM Probe Role, Chi. Trib., July 21, 1995, Bus. Sect. at 1. (3.) Milo Geyelin, A Missouri Law Firm Finds Tobacco to Be a Lucratire Cash Crop, Wall St. J., Mar. 28, 1996, at A1. (4.) See, e.g., United States v. Davis, 838 F.2d 909, 918 (7th Cir, 1988). (5.) See, e.g., United States v. Coleman, 997 F.2d 1101, 1105 (5th Cir 1993), cert. denied, 114 S. Ct. 735 (1994). (6.) See United States v. Marshall, 83 F.3d 866 (7th Cir. 1996).

Chris Gair is a partner with Freeman, Freeman & Salzman in Chicago and a former assistant U.S. Attorney for the Northern District of Illinois.