January 2011 - National Labor Relations Board

10394 WITNESSES10394.2 Examination of WitnessesThe trial attorney should call and examine witnesses as planned in the trial brief(Sec. 10336), unless changed circumstances favor altering the order or direction of theexamination. In order to enhance the credibility and reliability of the witness, direct,nonleading questions should generally be used. Some leading, however, is permitted toadvance the witness to a particular subject matter and for refreshing recollection. Foradverse witnesses, examination by leading questions is appropriate. Sec. 10394.3.10394.3 Rule 611(c) Federal Rules of EvidenceThis Rule in pertinent part provides:When a party calls a hostile witness, an adverse party, or awitness identified with an adverse party, interrogation maybe by leading questions.Examination of respondent’s decisionmakers and agents by leading questions hasproven to be a useful tool that should be seriously considered in each case. Theadvantages of this examination, used early in the General Counsel’s case, include:Fixing respondent’s defenses on critical issues, such as the cause fordischarge in an 8(a)(3) or 8(b)(2) caseSecuring admissions early in the proceeding for efficient and effectivepresentation of the caseSecuring admissions on matters particularly within the knowledge ofrespondent’s witnessesIn the event it is decided to use Rule 611(c) examination, the trial attorney shouldcarefully prepare the examination prior to trial and, when appropriate, use it in tandemwith a subpoena duces tecum.10394.4 Cross-Examination of WitnessesCross-examination of a witness called by another party is not mandatory and maybe unnecessary. The goals of cross-examination include impeaching the witness’testimony and gaining admissions of fact favorable to the General Counsel’s case. Withrespect to impeachment, the relative reliability of a witness’ direct testimony may berevealed by questioning as to, for example, the timing and specific circumstances of theevents or conduct in issue. In preparation for cross-examination, the trial attorney shouldcarefully review the defenses proffered during the investigation and also those that maybe reasonably anticipated. Thus, the trial brief should set forth in detail possible lines ofcross-examination. Finally, cross-examination should proceed with firmness, directionand cordiality.Revised 01/11