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Surviving Aggressive Cross-Examination

An Interview with Emanuel Kapelsohn

by Gila Hayes

I was intrigued a few weeks ago when I received an email from Network Advisory Board Member Emanuel Kapelsohn, who said that while giving expert witness testimony recently, he had to explain a statement attributed to him in the Network’s online journal. The discussion let me explore how he had defused the attorney’s attempt to discredit him as well as learn how an experienced witness deals with attacks from opposing counsel. I want to share it with Network members, so let’s switch now to our Q and A format and learn from Kapelsohn in his own words.

eJournal: Thank you for sharing your experiences testifying in court. I am looking forward to learning ways to counter information an opposing lawyer may dig up to make us look bad. First, though, tell us a little about your career in the law.

Kapelsohn: I started practicing law in 1978 and have practiced law off and on since that time. There was a period when I just did firearms and use of force training and worked in executive protection and as a security director and so forth, but then I returned to practicing law. Most of my law practice has been in commercial litigation cases that have nothing to do with use of force or firearms. A little bit of my law practice is reviewing use of force policies for law enforcement agencies and reviewing product warnings and owner’s manuals for manufacturers of law enforcement products: guns, holsters, target systems and so forth.

I’m also on a U.S. Department of Justice list of attorneys who are on call to provide emergency representation to federal agents who have just been involved in shootings, and I’ve been called on to do that several times. I’ve also provided similar immediate representation after a shooting to municipal police officers on a few occasions. But, again, 98% of my law practice has nothing to do with firearms or use of force.

eJournal: However, we should not overlook all the times you’ve provided expert testimony at trial. What does that entail?

Kapelsohn: I’ve worked as a defensive firearms instructor providing firearms and tactics instruction not only for law enforcement officers and law enforcement instructors but also for private individuals who own or carry firearms. I’ve done that all over the country for about 35 years now. For about 30 years I’ve worked as an expert witness in state and federal court cases involving firearms, self defense, gun accidents, use of force issues, reconstruction of shooting scenes, and also reconstruction of crimes where a knife or impact weapon or some other kind of weapon was used.

My legal training, legal background, and courtroom experience have been very useful, very important, in doing both the instruction and the expert witnessing. Obviously, it gives me a good knowledge of self-defense law and a good knowledge of the law regarding the use of firearms. It also gives me experience with regard to cross-examination and the way that trials work and the way that depositions are taken and all of those things. Also my experience as an instructor helps me explain firearms, tactics and self-defense concepts in a way that jurors can understand. These skills all work together very symbiotically to help me do a good job as a witness.

eJournal: You spoke of familiarity with trial procedures. As lay persons, many Network members find the prospect of being called to the witness stand to explain self-defense actions daunting, so we can learn from your experiences. One aspect of testifying is how opposing counsel may try to discredit you. You told me a little about a recent instance in which a state’s attorney used material from a Network journal interview to that end! What happened?