Stupid Lawyer Tricks

Unless you live in a cave or just try to avoid politics—either is a good idea these days—you witnessed the embarrassment that a certain Missouri senator suffered when questioning a witness recently. The senator called a witness names, accused him of perjury, and then confronted him with text messages to nail down his coffin. Unfortunately, the coffin he closed was his own as he got the facts wrong.

Politics are polarizing and I avoid them in this space. This is not a political column. Because the senator is also a lawyer his embarrassment is a lesson to the rest of us. Having cross examined a few thousand witnesses over the years, the senator/lawyer’s mistake was avoidable by following the most basic trial lawyer rules.

Know the answer before you ask the question.

Law students learn Professor Irving Younger’s fourth commandment of cross examination early: Never ask a question to which you do not know the answer. While Professor Younger gets credit for this tenet, Harper Lee said it about ten years before he did in “To Kill a Mockingbird.” My children knew when I questioned them about something that I knew the truth already and they would be well advised to come out with it early.  I didn’t always know what they were up to but I got my bluff in when they were young enough that they didn’t test me often.

Younger taught that there could be times to break the rule, like when the answer didn’t matter and the witness would be stuck no matter what they said. The senator in question learned on national television that only one answer to his question would help him. By not confirming his facts before asking the question, he lost the argument and his credibility.

Good lawyers don’t kill witnesses, they help them commit suicide.

I first heard this maxim from Tom Strong, the legendary Missouri attorney. Lawyers look like bullies when they beat up a witness on the stand. Even if you overpower the witness, you lose favor with the jury. Jury decisions are often made on feelings as much as facts. Maybe that isn’t the case in politics.

Assuming he had the facts right, the better way to handle the witness would be to present them and get confirmation of their accuracy. Then leave it alone. Jurors can connect the dots and presumably voters could too.

Save name calling for the schoolyard.

I can’t think of a time when I ever called a witness a liar. Not because I haven’t caught a few of them in lies, but because it is beneath a professional to ignore decorum and more importantly, jurors can smell a lie when it is in front of them. If one is to call a witness a liar, it should be done rarely and carefully, once a lie has been shown to be more than a mere mistake and the witness has either confessed it or cannot escape it.

I have never called a witness a name in court.  There is a time for theatrics in the courtroom and I admit to occasionally showing my excitement on my face when I knew a “gotcha moment” was about to happen. My face doesn’t have a mute button but I try to control it.  The senator’s glee faded from his face quickly when he realized he was the one who got gotchaed. It was entertaining but not in the way he intended. Had he been in a courtroom, he could have apologized and sat down. We all know what he did instead.

©2026 With All Due Respect. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He tries not to make mistakes but certainly to avoid the big ones. Comments or criticisms about this column may be sent c/o this publication or directly to him via email at farris@farrislaw.net.