The “Gracious Concession”

Jamison KoehlerTrial Advocacy

It is great when things are going well on cross-examination and you can string out one helpful tidbit after another for maximum impact.  During the cross-examination of a police officer in a DUI case, for example, this might be taking advantage of what Lenny Stamm has referred to as the “white part” of the police report:  All the good things about the suspect that the police officer did not see fit to include in his report.  My client wasn’t speeding.  Or swerving.  He stopped at the red light.  He signaled before turning.  He pulled over immediately when you activated your overhead lights.  He was polite with you.  And cooperative.  He spoke normally, and his face was not flushed or red.  And so on.

This is harder to do, however, when the witness makes what Larry Pozner and Roger Dodd term “the gracious concession.” Pozner and Dodd use the example of a domestic relations case in which the cross-examiner knows that the woman who is testifying cheated on her husband.  The cross-examiner is salivating at the prospect of being able to drag out one salacious detail after another.  Instead, the witness readily concedes the point.

Q:            You know Tom Bradley?

A:            Yes.

Q:             You know him more than casually?

A:            I know Mr. Bradley.  I made a mistake during the marriage.  I was intimate with Mr. Bradley.  One evening we had sex.

Boom. By conceding this embarrassing fact without fighting the cross-examiner, the witness comes across as honest and credible, and the finder-of-fact will give more credence to everything else she testifies to.  And a cross-examiner who nonetheless attempts to proceed with this line of questioning will quickly draw a rebuke from the judge:  You have made your point, counsel.  Move on.

Pozner and Dodd suggest you consider this approach when preparing one of your own witnesses to testify to a bad fact.  In the domestic relations case above, for example, opposing counsel would not be asking about the affair unless they were ready to prove it up.  Thus, they are hoping the witness will deny it, thereby completing destroying her credibility.  At the very least, they are hoping they can draw it out for maximum impact.  The “gracious concession” thwarts all that.