It’s rare when a witness does not come with some baggage, whether it’s a criminal conviction, bias, inconsistent statement, or some other challenge that affects his or her credibility.
In this scenario, Counsel has a choice: bring the issue out first and before the other side has the opportunity or allow the opposing counsel to do so on crossexamination which would create a “sting.” This sting in definition is “to make something that is unpleasant a little less unpleasant.” In other words, it is a way to bring the “baggage” out first, which could promote maintaining the jury’s trust, as opposed to appearing as though you are attempting to hide information.
How and when should counsel attempt to take the sting out at trial? In most cases, the best time to do so would be neither at the beginning or the end of direct examination, but in somewhere in the middle. Counsel should aim to allow the client or witness to establish some rapport or trustworthiness with the jury and after doing so ask questions to enable the witness to acknowledge the flaw or issue and thereby mitigate its harm. By doing so, the jury will most likely appreciate the client or witness being candid and forthcoming.
On the other hand, glossing over the issue during direct examination will give opposing counsel the ability to bring it out first and attempt to manipulate the matter into something that is more than what is really is. That will leave the witness to defend themselves regarding matters that simply could have been brought out during direct examination and established as something in the past that has been handled, for example. At the end of the day, if there are negative matters that are likely to arise, then the foregoing preemptive “drawing the sting” approach would be more effective. If a client does not tell his or her attorney about an issue that could come up or if counsel is aware and does not address the matter head on, then a witness’ credibility will take a plunge and the viability of the case including damages will be certain to have an adverse impact on the case and possibly the determination of damages.
Please note there are limited circumstances when this approach may not apply. For example, where the impeachment or negative evidence is so weak or petty whereby bringing it up would create non-issues and waste the court’s time. If opposing counsel happens to bring it up, such petty evidence can be handled during re-direct examination (questions asked after cross examination) and mitigated at that time.
PLEASE BE ADVISED: Views expressed are not intended to be legal advice and does not create an attorney-client relationship.