Ok! I hope everyone has got their hard hats on because this is going to be rough. I was reading the news yesterday and came across an article stating that RDR books had called JK Rowling as one of its witnesses.
I’m a member of the Leaky Cauldron forum. And no I’m not telling you my screen name, though 3 souls among you have figured it out. The debate in the thread WB/JKR vs. RDR is raging strong and wrong. Most people are under the erroneous assumption that having JK Rowling called as a witness is damaging to RDR books. All right I did laugh. So now we are going to delve into some trial strategy- namely direct examination, cross-examination and hostile witnesses.
When you try a case, it is done by way of live testimony. Yes documents are admitted into evidence at trial, but they are admitted in conjunction with live testimony. So when a witness is put on the stand they are sworn in and then questions first by the side that called them as witness. This is direct examination. When a witness is on direct examination certain types of questions are not permissible i.e. leading questions. The direct examiner asks open-ended questions to elicit evidence to support the prima facie case.
Example of permissible direct examination questions
♣ Where were you on March 23, 2005?
♣ Do you wear glasses?
♣ What if anything did the defendant say?
♣ Did you see the defendant shoot the victim?
After the direct examination is over, the other side subjects that witness to cross examination. The scope of cross examination is very narrow. You can only ask questions that pertain to facts revealed during the direct examination. So if I asked John Doe about Marvin Murderer killing Violet Victim on direct examination and this alone, my opponent cannot ask John Doe about Marvin attempting to run over Violet the week before (although it is relevant to the case). Cross examination is conducted by way of asking leading questions, which are questions that suggest the answer or contains the information the examiner is looking for. The whole point of cross is to damage the witnesses credibility by showing that they are untruthful or biased in some sort of way. Of course if you can provoke them into being defensive Kudos! There’s nothing like a ranting and raving lunatic to make your case for you.
Examples of cross-examination questions
♣ On March 23, 2005 you weren’t at the Swanky Bubbles were you?
♣ Isn’t true that you weren’t wearing your glass on that day?
♣ Isn’t it also true that because you weren’t wearing your glasses your vision was limited to 4 feet in front of you?
♣ The murderer was standing 10 ft. from you wasn’t he?
♣ So you really couldn’t see his face at all could you?
If your cross examination was successful, then the witness’ credibility should be shot. Then the party calling them as a witness typically does a re-direct examination. But this is even more limited than cross examination. Basically you just reiterate the pertinent facts.
That’s the way things normally go. Now put your hard hats on. In some cases, like this one, the defense calls a witness whose interests are opposed to their own. This is known as a hostile witness. Obviously if you call a hostile witness, direct examination isn’t going to do anything for your case. This is why hostile witnesses can be asked leading questions as though it were a cross-examination.
The following is a fictional example of the direction examination of JK Rowling. It is not fact. Any similarity to what will occur at trial is Strictly coincidental and due to my Brilliance as a Burgeoning Trial Attorney rather than inside Knowledge.
Q. Ms. Rowling would if be a fair statement that there are at least twenty thousand Harry Potter fansites world wide?
Q. Isn’t it true that of these twenty thousand sites you only gave awards to 8 fan sites?
Q. Would it be a logical assumption to make that these 8 sites to whom you gave awards were a cut above the rest?
Q. Wouldn’t it be a logical assumption to make that people would think you approved these sites because you gave them an award?
Q. Isn’t it true that you flew the web masters of two of your fan sites (Melissa and Emerson) to Scotland for the release of the 6th book?
Q. Isn’t it true that you gave them an “exclusive” interview.
Q. Isn’t it a fair statement that you picked these two people because you admired the quality of the work on their blogs?
Q. Isn’t it also a fair statement that Melissa and Emerson also received awards for their sites?
Q. Isn’t it also a fair assumption to make that people would think you conveyed an honor on Melissa and Emerson by inviting them to Scotland?
A. I don’t see…
Q. It’s a yes or no question.
Q. Are you asking this court to believe that you didn’t approve Melissa and Emerson’s websites?
A. (This answer is damaging either way you look at it)
Q. So it is a fair statement that you approve the fan sites to which you give awards.
Q. Ms. Rowling isn’t it true you gave SVA a fan site award for the Lexicon
Q. Isn’t it also true that the reason you gave him a fansite award was because his work was beneficial?
Q. It’s a yes or no question Ms. Rowling.
Q. Ms. Rowling didn’t you in fact state on you website that the Lexicon was “additive?”
Q. Isn’t it also true that it was your natural home?
Q. Isn’t it true that you in fact use his cite regularly to check your facts?
Q. And you use the Lexicon because it is in fact useful don’t you?
Q So despite the fact that you gave the Lexicon a fan site award, despite the fact that you described the site as addictive, and despite the fact that you stated you used it to check your facts you expect the court to believe that the Lexicon has no real merit?
A. (Either way you answer this question, it’s bad)
Q. Isn’t it a fair statement that the quality of the Lexicon is good because SVA put a great deal of time and effort into it?
A. Yes, but..
Q. It was a yes or no question, Ms. Rowling
Q. Isn’t it a fair statement that in bringing this suit for copyright infringement you are saying in essence that the work has no literary merit?
Q. Isn’t it a fair statement that your lawsuit in fact contradictions your past statement that the site was excellent?
A. That’s different because…
Q. It was a yes or no question.
A. Yes, but…
Q. Ms. Rowling kindly answer the question I’ve asked and not the question you want to answer.
A. All I’m saying is….
Q. Your Honor please direct the witness to answer the question.
That was an example that came entirely from my own head. Do not repeat it as a fact.
I see the light bulbs beginning to pop on. Yes, a good trial attorney can make mince meat of a hostile witness!! Now some are wondering why WB didn’t object to JK Rowling being called by the defense as a witness. Because they can’t. This is a civil trial. The Fifth Amendment prohibition on being forced to testify against yourself is only applicable in a criminal trial. In civil the only thing you have to lose is money hence no Fifth Amendment.
I personally as WB’s attorney would not want ask JK Rowling to take the stand, period. Why? Because the above scenario could easily happen on cross-examination. WB/JK Rowling and Scholastic’s behavior has inconsistent through this whole thing i.e. giving fansite awards, letters saying that his site made editing book 6 easier, using his timeline and website to create video games and keep plot straight for movie. To be quite honest, these things attest to the fact that the site/book is useful and has merit. So basically the defense is going to be showing that “if this site/book doesn’t have any scholastic or literary merit what was the point of giving the site award? ” and also “you were on notice in 2004 that this website was infringing your copyright yet your awarded them for it.”
I think JK Rowling loyalists are under the impression that this would be a venue where Rowling would have her moment to tell RDR books a few things. People, trial isn’t the free for all that is portrayed in the movies. If Rowling were to go on such a rant along the lines of how Harry Potter is her creation and she decides what the characters are, the judge would most likely think she is very arrogant and that she in fact is trying to exert control above what she legally has. Arrogance will turn judges against you quicker than anything I know. It would backfire spectacularly. I agree with you Silver Ink Pot, we can expect some grandstanding on JK Rowling’s part. Man I wish this were televised, talk about quality tv!