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Green herons have been observed collecting and saving
"bait" such as small scraps of bread. Rather than eating
the bread themselves, the heron sprinkles the bread into the water
to attract fish. They wait patiently while the fish assemble to
nibble the bread. Once there is an abundance of fish, the heron
chooses the fattest one for dinner.
* * *
These clever birds hedge their bets: a big fresh fish is a
larger, more satisfying meal than a scrap of bread.
* * *
I've seen many attorneys who simply cannot resist the scrap.
They cannot wait for the big fish. However, the reward is often
worth the wait. Concede the facts that do not matter and focus on
the critical facts in your theory of the case.
I once cross-examined an expert witness with a piece of
established scientific literature contradicting her opinions.
Rather than just conceding there are different opinions and
re-focusing on her opinions, she wasted precious time trying to
attack the methodology of the opposing study. Really, all she had
to do was to agree there are differences of opinion in science and
re-focus on her testimony on the unique facts of the case. Instead,
her combative responses were defensive and unrealistic. Her
opinions were buried. Nobody cared what she said.
Think twice before cross-examining a witness over
inconsequential issues. Beating up an adverse (but objective)
bystander witness over a DUI conviction 9 years ago can make you
look pithy and desperate.
As a general rule, you should pick a handful of facts and
objectives you need to accomplish with each witness. Stick to the
plan and avoid the nitty gritty. Remember the green heron and save
the breadcrumbs. It's usually better to catch the bigger
fish.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This guest post is from long-time friend of the blog Bill Childs, from Bowman & Brooke, who also wishes to thank Elizabeth Haley for research assistance.
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