One of the most important maxims law students or young litigators are taught to follow is “Never ask a question you do not already know the answer to.” This oft-repeated advice warns attorneys to beware of a situation in which a witness answering questions may offer evidence that undermines your own case if you are not careful. It is for this reason that good attorneys painstakingly prepare their questions to avoid eliciting any bombshells which could erupt if they fail to confine their inquiries about which they are certain.
Sometimes, however, it goes beyond the matter of which questions are best to avoid with a particular witness. In the ongoing trial of Vergara v. California backed by the group Students Matter, the plaintiffs seek to show that new California laws make it too difficult to remove or discipline ineffective teachers. The plaintiffs called the Superintendent of Los Angeles schools, John Deasy, to testify on their behalf. Upon direct examination, he did complain of the obstacles and costs he faces in ridding the system of poor teachers. But, upon cross-examination from attorneys for teacher’s unions, Deasy offered that school districts still retain ample latitude to make decent hiring and firing decisions. These remarks undercut his previous testimony that the law made it too cumbersome for schools or districts to fire or transfer bad teachers, particularly tenured ones. If better governance in some districts enabled the schools there to properly supervise their faculties and hire promising young candidates, then perhaps it is not the law being challenged, but rather the weaker school board leadership in certain districts which impedes appropriate decision-making on personnel matters.
The conflicting messages coming from the Superintendent illustrates two sets of challenges litigators must grapple with when choosing witnesses for a case. First, the litigator must interview witnesses in a manner which enables them to learn all of the views and opinions of a particular witness before making the decision to use them. Here the attorneys for the plaintiff may have believed that having the superintendent in their camp would inevitably bolster their case as he deals with issues of this nature daily. But many professionals, such as Dease, do not always hold absolute opinions which fall neatly within a single point of view. Witnesses with nuanced views can do as much harm as good especially in a case which a set of laws is targeted as the proximate cause of a particular problem. If the witness believes other factors contribute to a problem, he can undermine one’s whole case.
The second challenge is to assess whether putting a star witness on the stand is worth the risk. The weight of testimony from an authoritative source is compelling but, if he undermines the potency of his own testimony by qualifying it, upon cross-examination, those caveats themselves may also be given great weight by the jurors considering his testimony. For these reasons, the maxim “Never ask a question to which you do not already know the answer ” may need to be taken a step further: “Never rely on a witness with complex, nuanced and sometimes ambiguous views.”
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