November 17, 2014

Witnesses: Don’t Adopt, Do Adapt

By Dr. Ken Broda-Bahm: 

Adapt don't adoptIt is one of those irritating word pairs in English, like “your” and “you’re” – similar spelling and sound, but different meaning and frequent confusion. “Adopt” means to “take something as your own,” while “adapt” means to “make an alteration in response to a situation.” The meanings are different, but both figure prominently in the advice I give to witnesses: When being questioned by opposing counsel in either cross or deposition, it is a bad idea to adopt what you’re given by opposing counsel, but a great idea to adapt to the unique circumstances.

It is also one of those situations where litigation communication is at odds with conversational practice. In relaxed settings, we tend to adopt the style and substance of our partners in conversation – to entrain ourselves so we are sharing the same terms and mimicking the same style. Following that tendency when an adversary is taking our testimony, however, can have bad consequences. In this post, I’ll address both the perils of adopting, as well as the advantages of adapting for the deponent or the trial witness in cross-examination.

Don’t…

Don’t Adopt Opposition’s Facts

Last week in a witness prep session, counsel was pressing the witness on some detailed product specifications, sharing facts from the manual and asking for a reaction. “If you say so…” the tired witness replied. “No,” came a chorus from all of us listening: “If you say so,” is never the right response when the “you” in question is opposing counsel. Don’t take something as gospel just because the adverse party tells you or seems to know. There are exceptions, for example when the attorney says, “I’ll represent to you that…” when you can answer on the express assumption that it is true. But otherwise, don’t let yourself be informed by the party that is trying to do you in.

Don’t Adopt Opposition’s Language

We once had a deposition in which a doctor was asked if he was “completely ignorant” of the patient’s condition. “Yes,” the doctor replied, “I was completely ignorant of her condition at that point.” Those are probably not the words the doctor would have chosen on his own, so he shouldn’t adopt them from opposing counsel. And it can be more subtle than that: Even if the doctor had simply said “Yes,” he would have signed on to opposing counsel’s word choice. Answering in your own words can be critical when the other side is trying to plant language or frame the case in a particular way. When using the current Reptile approach, for example, med-mal plaintiffs have a strong interest in framing the case around the concept of “safety.” The best rule of thumb: Pick your own terms.

Don’t Adopt Opposition’s Tone

Reciprocity is one of those basic foundations of human communications leading us to want to meet aggression with aggression, or friendliness with friendliness. In a testimonial setting with opposing counsel, either can be dangerous. The express or implied insults that can accompany aggressive questioning can cause the unprepared witness to respond in kind and adopt a hostile tone or to turn the criticism back toward the questioning attorney: “Well, if your question reflected more understanding of the technology, perhaps I’d be able to answer it more clearly.” That’s not a good idea. Remember, the most important audience for the testimony, whether in deposition or trial, is not opposing counsel; it is a real or potential jury. With that audience in mind, keep a cool and patient tone.  

Do…

Do Adapt to Phase of Litigation

At the deposition stage, deponents are often eager to get their side of the story out, to make sure that their complete testimony is on record. It takes some patience for them to understand that this isn’t the purpose of a deposition. The time may come down the road at trial, and then the focus will be on their full story. But during the discovery phase, a witness’s goal is just to answer the questions selected by the other side. An appreciation for the limits of that litigation phase means resisting the temptation to volunteer information, to fill-in the picture, or to teach the other side. Answer the questions and answer them completely, but that’s it…for now. 

Do Adapt to the Uniqueness of the Legal Process

There are many ways communication in litigation differs dramatically from communication in the rest of the world. The question, “Do you know what time it is?” for example, in the normal world will yield a response like, “Yeah, it’s around ten o’clock.” The average attorney defending a deposition, however, will say that the question should be answered with a “Yes” or “No,” and if “Yes,” then “Okay, what time is it?” can be the next question. Even while they try to maintain a confident and conversational tone, witnesses should set aside their conversational habits, knowing that the questions in a legal context should most often be taken literally and just one at a time.   

Do Adapt to Opposition’s Goal

There is one circumstance, however, where deponents should go a bit beyond the literal answer to the question. It helps if witnesses are sensitive to two aspects of the question: There is its literal meaning, and then there is the implication that opposing counsel seeks to draw from the question. When a literal and restricted answer would not be enough to address the implication, then it helps to answer in a more expansive way that does address that implication. For example, counsel asks the doctor-defendant, “This test was available?” (Yes), and then “and inexpensive?” (Yes), and wraps up with “Yet you did not order it?” Just answering, “No, I didn’t” would be accurate but incomplete. The better answer would be “No, I didn’t order that test because it was not indicated based on the symptoms at the time.” When witnesses are attuned to opposing counsel’s goal, they’re able to adapt in ways that address that goal, making for a more protective record. 

This is a partial list of adaptations to embrace and adoptions to avoid. But the general principle is that when you adopt you surrender power, taking what you’re being given by the other side. When you adapt, however, you take back power, responding intelligently to the situation.

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Other Posts on Witness Testimony:

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