Neil Sugarman’s article, The Importance of Control was published in the February edition of Massachusetts Academy of Trial Attorneys (MATA Journal). The article discusses one of the most difficult qualities for trial attorneys to achieve—control of themselves, their witnesses and experts.
The Importance of Control
TIPS FROM THE MASTERS: MATA'S Voice of Experience
Successfully trying jury cases is not a skill with which you are born; rather, it is a life- long avocation that needs to be continually honed and developed.
At first, in an effort to become a trial lawyer, the classic approach is to watch and listen to others who do it and adopt portions of their skills to fit your own needs and personality. After a break-in time, once you have learned the basics, you start to develop your own unique style and qualities. It is at this point that the “true you” begins.
I have been asked to give a single piece of advice to assist the lawyer at trial — and also for use in depositions — to assist the ongoing process of honing your skills.
It assumes, of course, that you know your case fully and have a clear game plan. The purpose is not to teach you how to do it, but rather draw your attention to it based upon my experience.
The advice may sound simple, but it is one of the most difficult qualities to achieve during trial: control. Control of the adverse witness, expert or fact, during cross-examination. That does not mean being overbearing with the witness, but to make certain you’re in control of the answers given based upon your question.
You have to be certain that the witness is restricted in response by the use of clear and tight questions. If a witness wanders too far in answering, you may need the assistance of the judge. Having said that, usually you’re on your own, and have to exert your own personality, tactics and skill to bring the witness under control. Done properly, it can often make the difference in convincing the jury of your position.
Editor’s comment: After reading his piece, I asked Neil if he thought it would be helpful to add some examples of his techniques for controlling witnesses. He told me he considered including them but concluded it would be counter-productive. As a younger attorney he learned the hard way that many techniques that worked for others would not work for him. In his view, each lawyer must develop their own witness-control techniques based on their personality, the facts of the case, and the nature of the parties. JAK