Recognizing and Controlling Bait
When the cross-examination is going well for the lawyer, a witness will often search for a way to derail the cross-examiner. One of the most likely strategies is for the witness to offer bait.
Bait is a partially or fully non-responsive answer to the question.
Bait is designed by the witness to take the cross-examiner out of the current chapter or away from the current fact being discussed and into another area selected by the witness.
THE 4 DIFFERENT TYPES OF BAIT
1. Intra-Chapter Bait
a. The witness chooses to jump to the goal fact of the chapter.
b. If the cross-examiner falls for this type of bait, she has sacrificed a more detailed and precise picture the chapter was designed to teach.
2. Structure or Chapter Bait
a. The witness tried to change the subject.
b. The cross-examiner must resist the temptation to “one up” the witness by attacking the baited chapter and continue in the sequence she has placed her chapter in before trial.
3. New Bait
a. The witness adds new facts to a chapter or adds a new chapter by exaggerating or adding facts.
b. Sometimes the witness could be helping the cross-examiners theory of the case by doing this. However, the cross-examiner loses nothing and risks nothing by refusing the bait.
4. New Chapter Bait
Declining bait creates time for cross-examination analysis and a determination whether to re-cross on the limited area offered as bait by the witness.