October 15, 2015

Trust Your Witness

By Dr. Ken Broda-Bahm:

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A few days ago, an attorney I know emailed an article to a group that included me and a number of attorneys. It was the third time that had happened in two weeks — with the same article! There must be something to it, I thought, so I went ahead and clicked on “Reinventing Witness Preparation,” the article by Nutter, McClennen & Fish partner Kenneth R. Berman. The article advances the provocative idea that “They taught us all wrong” when it comes to getting witnesses ready for deposition or trial. As I read, I found myself nodding vigorously to the argument that much of the standard advice is too simple, too black and white, too controlling, and too likely to interfere with credible testimony coming from a capable witness. The main point of the article is that a slavish adherence to the common list of “don’ts” (“don’t say too much,” “don’t stray beyond the question,” “don’t answer if you don’t completely understand,” “don’t try to win,” etc.), can reduce confidence, conversational communication, and flexibility, all of which is key to effective testimony. The article includes a number of great nuggets: 

  • “In many witnesses’ minds, the standard instructions reduce to this: Just say as little as possible and you’ll do fine.”
  • “Many lawyers, if they could, would simply prefer to testify in place of their clients to avoid the problems flowing from ill-advised answers. This insecurity is at the heart of how most lawyers were trained to prepare witnesses for deposition or cross-examination.”
  • “The essential core of the problem, the real danger, is that of turning a good witness into someone so afraid of saying the wrong thing that he or she fails to say the right thing.”

There is much more, including some excellent examples showing how the restrictive mode of witness preparation can result in a less convincing witness. So if you’re reading this, you should also read the original article. But in this post, I wanted to touch on a larger issue: trust. Much of the bad advice Berman writes about comes down to just not trusting your witness. In some cases, of course, that mistrust is well-placed, but in many to most cases, the civil witnesses we prepare are sophisticated and capable of doing much more than following a restrictive rule book. 

Control Versus Empowerment

To put it simply, there are two ends to the spectrum when it comes to preparing the witness. On one end is control, and on the other end is empowerment. Litigators can tend to be a bit risk averse by nature, so often it is the control side that seems pretty attractive: A good witness listens carefully, internalizes the rules, and doesn’t say anything their attorney wouldn’t say. That can mean saying as little as possible. Kenneth Berman’s examples, including one excellent extended vignette on a sexual harassment claim, show how a witness can follow all of the rules and still turn in some disastrous testimony. Of course, answering questions that haven’t been asked and saying too much can also create disastrous testimony, but being too careful and being unwilling to share the full story when necessary can be just as bad. 

As Berman admits, some witnesses aren’t going to be savvy enough to know when they’re going too far or not far enough, and for those witnesses, a “Just stick to the rules” approach might be the best bet. But often, particularly in higher-end civil cases, the witnesses are very sophisticated individuals, who with a lot of instruction and practice, can handle a bit of nuance. For that witness, the goal isn’t for them to be controlled, but for them to be informed and empowered. Here are a few examples of what I mean. 

Some Illustrations

Let’s consider a fact pattern where a company’s product designer is testifying in a products liability defense, and look at how the controlled witness and the informed and empowered witness might answer the same questions differently.

The Leading Question: “You didn’t spend even a single day on aftermarket testing, did you?”

The Controlled Witness: “No, I didn’t.” [My attorney says not to volunteer any information.]

The Informed and Empowered Witness: “No aftermarket testing was needed because we had already thoroughly tested the product under use conditions before the product was released.”

The ‘Partial Truth’ Question: “This product has been associated with more than 50 documented incidents, hasn’t it?”

The Controlled Witness: “I am not sure about the number.” [My attorney says not to confirm details I’m not 100 percent sure of.]

The Informed and Empowered Witness: “I’m not sure of the number, but I believe the majority of those incidents had to do with product failure, and none involved serious injury.”

The Ambiguous Question: “What does your company do when a product causes injury?”

The Controlled Witness:  “I don’t know.” [My attorney says I should say that if any part of the question is unclear.]

The Informed and Empowered Witness:  “That would depend on the circumstances, and it would depend on what part of the company you’re talking about. There is no single uniform protocol.”

Of course, some attorneys will disagree with the answers, and I don’t pretend that there is one right answer. Preparing a witness is still more art than science, and attorneys and witnesses need an approach where both are comfortable. But one thing I’m sure of is that this point is not reached by attorneys just hitting witnesses with a barrage of requirements and prohibitions. Instead, good preparation should involve a few simple and obvious rules, and a whole lot of practice. By experiencing their own ability to answer the question and to reach an understanding of when an answer is strategic and when it isn’t, the witness gains confidence and a sense of control over the process. The goal of that practice isn’t to rehearse “correct” answers, but instead to find a comfortable spot on many of the inherent tensions in testimony: to be assertive without being combative, to be confident without being arrogant, to defend yourself without being defensive, to answer completely but without going off topic. There are dozens of “sweet spots” that need to be found, and good witness preparation informs and empowers the witnesses, guiding them to their own solutions within their own comfort zone.

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Other Posts on Preparing Witnesses: 

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Berman, K. R. (2015, Summer). Reinventing Witness Preparation. Litigation 41: 4. 

Photo Credit: 123rf.com, used under license

 

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