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What to do if a witness doesn't answer cross examination in an employment matter

San Diego, CA |

In an alternative dispute matter, if a witnesses who testify against you, doesn't answer questions that you ask, what should you do? How can you impeach the witness in such circumstances?

Arbitration matter. What if the witness said he or she forgot?

Attorney Answers 4

Posted

Your question is unclear. Are you in arbitration or mediation? If this is important enough for you to post a question that only a lawyer can answer, perhaps you invest in an hour or two of a lawyer's time.

Best,

David Mallen

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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Arbitration

David Andrew Mallen

David Andrew Mallen

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If you want to take the Home Depot "Do it Yourself" approach, perhaps you can Google the term impeachment of witness techniques or tactics. Impeachment depends on the context. You can also point out in closing argument that the witness is not credible because the witness could not answer a direct question.

Posted

Your question is indeed unclear. If you're in arbitration, and the witness is non-responsive, the arbitrator will likely compel a response (on their own or on your request), if the question is not objectionable.

The information/answer is not, nor is it intended to be, legal advice. Consult an attorney regarding your individual situation. This attorney is only licensed to practice law in California. Your question and this answer do not create an attorney-client relationship. Do not send/post any confidential information.

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Posted

If you are in an arbitration hearing and the witness doesn't answer, there are various devices you might use, but you may not have to do anything. Obviously the arbitrator is right there, too, and can see what is happening. This gives you the opportunity to argue in your closing statement and closing brief that the witness' failure to answer should be interpreted to mean that if the witness had answered, the witness' response would have supported your position.

Usually, the best thing to do is immediately ask the arbitrator to order that the witness answer ("Mr. or Madam Arbitrator, I move that you order the witness to answer the question.")

Other options would vary depending on the situation, who the witness is, what you know the witness would say, and more.

Ask the witness if the reason he or she is not answering is because he or was told not to do so by an employer (or whomever is relevant).

Ask if the witness is not answering because the answer supports your case.

Ask why the witness is not answering.

Ask why witness what you have to do to get him or her to answer.

Remind the witness he or she is under oath and that a failure to answer may be considered contempt (depending on if this is court-ordered arbitration).

All that said, I agree absolutely that your best bet is to retain an attorney to train you for a few hours in the rules of evidence, witness examination and cross examination. For this type of assistance, you can expect to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. You should expect to need at least three hours for this kind of consultation.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Marilynn Mika Spencer

Marilynn Mika Spencer

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To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state. I hope you can resolve your situation and wish you the best.

Asker

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What if the witness said he or she forgot?

Tai Christopher Bogan

Tai Christopher Bogan

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Forgetting is not the same as not answering. You can refresh their recollection with anything you'd like. You show them the thing you'd like them to read or listen to or view to see if it helps refresh their recollection. If the person is intentionally being evasive then follow Ms. Spencer's sound answer. Cross examination is an art and is why attorneys charge so much do help you. It really is not a waste of money if you hire a true litigator who knows how to cross examine witnesses.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Mr. Bogan is absolutely correct. Saying he or she forgot is different from just refusing to respond. It is impossible to provide meaningful suggestions without knowing the specifics, but in addition to Mr. Bogan's suggestions, you can try to walk them through the relevant events of the day or situation (by Q & A, not by your statements) to help refresh the witness' memory . . . or to show to the arbitrator that the witness remembers everything other than the significant fact, which may affect the witness' credibility. Know that if you are relying on an opposing witness to prove your case, such as needing a management-side witness to give smoking gun testimony, you will probably never get the testimony you seek. You need to prove your case with your own evidence and witnesses.

Asker

Posted

Not looking for smoking gun from these witnesses but I wanted to impeach them.

Posted

Refresh their recollection with the previous answer, assuming the previous answer is helpful to your position. And/or ask the arbitrator to order the witness to answer.

Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555

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