By Dr. Ken Broda-Bahm:
Testifying in deposition and on cross-examination can seem like a battle for control. Opposing counsel is aiming to fit the witness into a script, and the witnesses (hopefully) are trying to speak for themselves. A well-prepared witness will have a lot of tools at their disposal in aiming to at least come out even in that battle. But here is one of the major tools, and frustratingly, it is the one that I seem to have the greatest trouble trying to get witnesses to consistently use: a full sentence answer. That means a subject, a verb, and an object; an answer that is complete in its own right and doesn’t depend on the question for clarity and context. In the hands of a well-prepared witness, the technique of generally answering with a full sentence stands the best chance of protecting the witness and the record over the long haul of testimony. But witnesses, and sometimes their attorneys, will often resist.
For the attorney, it can be a matter of preferring simplicity: “If the answer is yes, then just say ‘yes.'” Less complexity, fewer words to deal with, less chance for a slip — it feels like the attorney has greater control. But broadly speaking, simplicity and control aren’t the goals of good testimony. Rather, the goal is to present the full, fair, and complete truth, and to do so in a light that is most favorable to your side in an adversarial proceeding. That doesn’t mean rambling or going beyond the scope of the question. But it does mean making sure that you, and not counsel, are setting the terms and laying out the testimony. For most questions, that means more than saying “yes” or “no.” In this post, I’ll share my best list of reasons why a full sentence answer will generally serve a witness better than the “safe and simple” yes/no route.
If the question is: “Doctor, when you examined the patient at 8:00 AM, you didn’t note any symptoms other than fever and shortness of breath, correct?”
You could answer, “yes.”
Or you could answer, “That’s correct.”
But it is better to answer, “Correct, there were no symptoms reported or observed at 8:00 AM other than fever and shortness of breath.”
The shorter answers don’t spell the end of the world. But here are 10 short reasons why, when sustained over the course of testimony, the habit of answering in a complete thought will better serve the witness.
In my view, a full sentence answer…
1. Prioritizes Your Words, Not Theirs
A “yes” is just a rubber-stamp endorsement of whatever counsel said, and a “no” is just an unexplained denial of whatever counsel said. Either way, it is counsel’s words that end up making up the record, and not the witness’s. Full sentence answers require the witness to choose their own words, and when that witness is prepared, the witness will generally choose words that are more helpful to their case than their adversary will.
2. Clarifies That You’re the Witness, Not Counsel
Who is doing most of the talking? When witnesses give short and staccato answers, then the bulk of the communication is coming from counsel. Practically, and to a jury’s eyes and ears, that makes the attorney the one supplying the useful information. Full sentence answers, on the other hand, balance out the talking time and ensure that a jury or anyone reviewing the deposition transcript will see the most important pieces of information as coming from the witness and not from counsel.
3. Defeats Counsel’s Attempt to Lead
A leading question begs for a compliant witness. When attorneys are essentially making an argument and then adding, “correct?” or “Isn’t that right?” at the end, the witness behavior that makes the process go smoothly is for the witness to just say “yes.” When witnesses instead say it in their own words, even when the “yes” is still there, counsel’s attempt to lead is thwarted. For the examining attorney, it can be frustrating, but for the witness, it takes back a measure of control.
4. Breaks the Flow of Counsel’s “Chain Questions”
Often the questioning attorney will want to walk the witness up through a sequence of questions leading to a punchline at the precipice. These “chain questions” rely on a series of obvious “yes” answers leading to a damaging conclusion that cannot be denied based on the previous concessions. If the witness has been answering in full sentences, however, it is more likely that key conditions, qualifications, and nuances have been added that prevent the inevitable clear conclusion. By answering in full sentences, you’re depriving opposing counsel of the simplicity they want.
5. Engages Your Verbal Skills
Verbally, a witness is relatively passive when just listening and deciding whether to say “yes” or “no.” When taking on the task of forming responses in words, though, the witness needs to put verbal skills into play: forming complete thoughts, choosing words. That engagement makes the witness a more active participant in the testimony, and that active engagement can help to refresh recollection and to remind the witness of the best defenses.
6. Limits the Chances for Misunderstanding
As simple as it seems, sometimes the “yes,” or the “no” isn’t a clear answer on its own. When the question is compound, which part or parts does the “yes” apply to? When the question contains a double negative or a change in direction the “yes” is similarly unclear. If the question is, “Doctor, you didn’t chart that did you?” it can be unclear whether a “yes” means “Yes, I charted it” or “Yes, you’re right, I didn’t chart it.” The full sentence resolves that ambiguity.
7. Provides a Chance to Look at the Jury
In trial, the most important audience for a witness is obviously the jury. While polite attention should focus on the questioner while a question is being asked, that attention should naturally shift to the jury during the answer. But if the answers don’t extend beyond a quarter-second “yes” and “no,” then there is no time to look at the jury – any attempted glance would look quick, furtive, and mechanical. Full-sentence answers provide time for your focus to be where it belongs during the answer: on the jury.
8. Engages Thoughtful Pausing
Full sentence answers can also slow the process down in a productive way. A “yes” is quick and easy, but figuring out how to say “yes” in one’s own words, that takes a little bit of time. The short pause while witnesses select their own words helps to keep the process more relaxed and thoughtful, and also makes it easier for jurors to follow the discussion.
9. Makes Key Explanations Not Sound Defensive
No matter how perspicuous a witness is trying to be, at some point in deposition or trial testimony, that witness will need to offer a key explanation on a critical point. When that explanation is one of the few times that the witness strays from “yes” or “no,” then the explanation can stand out and sound defensive. When complete thoughts are offered in the normal course of answering, however, the explanation is just a normal answer.
10. Allows a Chance to Show Competence and Credibility
For most witnesses, the goal is not to just get through the examination without disaster. Instead, the goal is to be effective with fact finders, or potential fact finders. That requires that witnesses have a chance to show their knowledge of the facts, their facility with the details, their expertise, their ability to explain, in short, their credibility. Sure, there are witnesses who even after preparation will have an insurmountable deficit in one or all of these. But for most witnesses, testimony is still a chance to build a good impression, and that’s hard to do with a one-word vocabulary. Use full sentences and jurors have a better chance to assess you and come to a good impression.
I understand that there is no one true method for testifying, and different attorneys and consultants have different styles and preferences. But I’m convinced that preparing the witness, and then trusting the witness to answer on their on terms, using complete thoughts and full sentences, is effective in the long-run.
Other Posts on Witness Testimony:
- Treat Witness Eye Contact As a Three-Way Conversation
- Bottom Line Your Deposition Advice: Four Rules
- Don’t Be Led (in Deposition)
Image credit: 123rf.com, used under license