Do this Before You Approach the Witness

Portrait of tiger
In our lives as trial lawyers, we are often required to approach witnesses on the stand.  Judges typically safeguard the space between attorney and witness — as sort of a demilitarized zone.  As early as law school trial advocacy class, students learn about the important custom of asking the court before approaching the witness.

I confess that I have always secretly resented the idea that I should request permission before I can approach a witness.  Though I understand why judges find it important, I am always concerned that by asking “May I approach the witness?” in front of the jury, I am helping perpetuate the view — even subconsciously  — that I, along with all lawyers, should be feared and kept away from the witness’ space.

When I try a case, the last thing I want the jury to do is to fear me.  I want them to see me as a facilitator and presenter of evidence leading to a truthful and just outcome.  Even when I am examining an opposing witness, it is useful for me to be regarded as seeking the truth, and not merely circling a witness waiting to pounce, like a voracious predator.

How, then, do you serve both goals — respecting the courtroom decorum of inquiring before approaching, while, at the same time, appearing to be a facilitator in the search for truth and justice?  A small change in the way you ask to approach can be the key.

Explain the Purpose of Wanting to Approach the Witness

Let’s say that you want to approach the witness to hand him a deposition transcript.  Instead of holding the transcript in your hand and asking,

“Your Honor, may I approach the witness?”

say:

“Your Honor, I’d like to hand this deposition transcript to Mr. Smith.”

And let’s say that a witness is having trouble finding her place in a document exhibit. Don’t ask,

“Your Honor, may I approach the witness?”

Instead, say:

“Your Honor, I’d like to help Ms. Johnson find her place in the document.”

 

In both versions of those requests, you’re essentially asking to do the same thing. The latter version, in which you explain the purpose of the approach and use the witness’ name, casts you in the more desirable role of helper and facilitator, rather than a person whose movement in the courtroom must be restricted.  While you might achieve a non-threatening feel by asking the formulaic “May I approach?” in a cheerful manner, the specific words you use instead of “approach”, and the use of the witness’ name, move you closer to the important goal of appearing to be a helper and facilitator of truth and justice gathering.

— Larry

 

Little things matter when you appear before jurors.  For some other pointers on behavior in front of juries, take a look at these articles:

Would you like some help in refining your courtroom approach?  Contact us to arrange some Personalized Litigation Coaching.

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