Category Archives: Witness Preparation

July 11, 2016

Witnesses, Know When to Use Your Own Words

By Dr. Ken Broda-Bahm: 


I frequently travel around the country to meet with attorneys in order to help them get witnesses get ready for deposition. As we share our best practices, I will sometimes notice that there is a difference of opinion over how much or how little a well-prepared witness ought to say. Some attorneys, it seems, have been schooled in the “Less Said, the Better” school of witness preparation. I, on the other hand, often want to make sure that the record of testimony ends up being in the witness’s words, not the opposing counsel’s words, and that means encouraging witnesses to speak for themselves. For the witness, it can be a source of confusion: One of my advisors likes it when I say less, and the other likes it when I say more…. Adding to the confusion, the preference often varies by question: We’ll both agree that less would have been better on this question, but more would have been great on that question. 

What’s the answer? During a recent witness preparation session, I think I hit upon a rule of thumb that might be useful both for witnesses as well as those who prepare them. It comes down to identifying and adapting to the purpose of the question, and giving less when the purpose is just to gather information (a short answer or a simple “Yes” or “No”), and giving more and making sure it ends up in the witness’s own words when the purpose is more to make a point or advance an argument. In this post, I will take a look at the thinking underlying both the “less” and the “more” camps, and flesh out the decision rule on when to do one rather than the other. 

The “Less is More” Camp:

Your client’s deposition is being taken for a purpose, and it is the other side’s purpose. The witnesses aren’t there to make their case, they’re there just to answer an adversary’s questions on the record because the law requires it. That’s it. They have a responsibility to answer honestly, of course, but no responsibility to do anything more than that. Every word that goes beyond the simple “Yes” or “No” is just giving opposing counsel something to work with, possibly offering a gaffe or potentially opening doors to more questions. 

Testimony is simpler, more controllable, and less useful to the other side when it sticks to the basics. So the bottom line advice from this perspective? Just answer the question, and often that means “Yes,” “No,” “I don’t know,” or “I don’t remember.”

The “More is More” Camp

Sure, the deposition isn’t the time to make your case, but it is the first official record of the witness’s testimony. And perhaps more importantly, it is a key opportunity for case assessment, allowing opposing counsel and possibly experts, mediators, and others to see how well the witness will do. Potentially, that testimony can be used in court, via either read testimony or a video clip. For that reason, it is important for the witness to be the witness, and that means using your own words and not opposing counsel’s words. Leading questions can be phrased to suggest a simple, “Yes” or “No,” but still be misleading or incomplete. For example, 

Q: You had a CT scan available didn’t you? 

A: Yes. 

Q: And it would have been relatively cheap and easy to have used it, wouldn’t it? 

A: Yes. 

Q: But you didn’t use it, did you? 

A: No. 

That exchange creates the impression that the doctor-defendant simply omitted the easy and obvious step. But the answer, “No, because a test like that was not indicated by any symptoms” is much better. 

For Some Witnesses, a Decision-Rule 

The rule comes down to sensitivity to arguers purpose: 

When the question is just seeking information, answer briefly. 

But when the question is setting up an argument, answer in your own words. 

A “Yes” or “No” is fine for the question, “Have you authored any peer-reviewed articles?” but not for the question, “You didn’t order a CT scan, did you?” because the latter, particularly in the context of a chain of questions, has an argumentative purpose. I don’t mean “argumentative” in the sense that justifies an objection, e.g., by asking a witness to draw an improper inference. Instead, I mean that it seems designed to help build counsel’s overall argument against you. 

One clue to whether the question plays that role is whether it is leading. Pointing the witness toward preferred conclusions and language is a red flag that the questioner is no longer seeking answers but is instead seeking agreement. When the attorney shifts toward that purpose, the witness should shift toward answers that, while still brief and to the point, are framed in the witness’s own terms. 

But here is why this is only a solution for some witnesses: It requires a reasonable sensitivity to the questioner’s purpose. The witness needs a reasonable understanding of when they’re asking because they want to know and when they’re asking because they’re trying to create an argument. If a witness is oblivious to that distinction, isn’t able to intelligently assess the questioner’s purpose, or if a witness is distracted by that focus and unable to take each question as it comes, then the attorney and consultant running the preparation session should default to one or the other camps above. Personally, I think the habit of often to always using one’s own words is a good habit. But when the witness is savvy and able to understand what opposing counsel is doing, it is also a good tool to vary their level of completeness in response. 

How can you tell if your witness is able to do this? By having a witness preparation session, and one that focuses not on just talking about the case, but instead focuses on practicing via a mock deposition. 


Other Posts on Language Use By Witnesses: 


Image credit: Created by the author

July 7, 2016

Women in Court: Go Easy on the Cosmetics

By Dr. Ken Broda-Bahm: 


This belongs in the category of not necessarily fair, and not necessarily logical, but generally true: Cosmetics are important to how women are perceived, and wearing makeup on one’s face does convey a better impression. That difference in perception goes to credibility, and for that reason, most female witnesses and attorneys cannot afford to just skip the cosmetics. Based on the social science, the makeup has two main functions bearing on perception: One, it makes the skin tone more uniform, and two, it creates greater distinctions between the features, in effect outlining the major landmarks of eyes, lips, and cheek bones.

Now, as a male writer, I can’t fully appreciate the social pressure, and can only imagine how it would feel to know that, based on society’s view, my face is just not enough, and needs some enhancement in order to be viewed in public. I suppose that could be looking at it the wrong way, though. Makeup could be seen as just a way to add creative diversity to human appearance, and women can get away with it, but at this point men — at least those who aren’t members of Duran Duran or the New York Dolls — really can’t. Only in practice, for women it isn’t so much an opportunity to use makeup, as a penalty for not using makeup. According to the social science, both men and women will evaluate women negatively for not using cosmetics. So being credible in a courtroom context most likely requires awareness of and adaptation to that social convention. But it is not so simple. New research (Mileva, Jones, Russell & Little, 2016) indicates that men and women react differently to makeup. Practical experience also adds that how makeup is worn matters as well, and a natural look and “a little goes a long way” is probably the best advice for the courtroom.

The Social Science: Cosmetics Convey an Advantage

The recent research  (Mileva, Jones, Russell & Little, 2016) used realistic photographic manipulations to show the same faces with and without cosmetics, asking participants to rate the photos on a number of factors. The authors helpfully review much of the prior research. As discussed in that article, women who wear cosmetics are viewed as: 

  • Healthier
  • More attractive
  • More feminine
  • Higher social status
  • Higher paid 

The new study results were in line with that tendency as well. “We found that men and women both viewed the faces of women wearing cosmetics as more attractive and as higher in status.” However, they observed one interesting difference that separated the reactions of male and female research participants. 

The Difference: Men See Prestige, and Women See Dominance

Prestige and dominance are seen as two distinct routes to influence. Dominance refers to influence through power, force, or intimidation of a particular group. Prestige, in contrast, is influence that is conferred by the respect from a particular group. As the authors summarize, “prestigious individuals are looked up to by members of their group, while dominant individuals are generally feared.” So, it boils down to a comparison of positive and negative power. While both work to exert influence, prestige is more highly valued. 

In that context, it is interesting that female research participants saw those with cosmetics as higher in dominance, while male research participants saw them as higher in prestige. In a follow-up study, the researchers found one possible explanation for women viewing the madeup as having the more negative form of power: jealousy. Women reported greater feelings of jealousy toward the women wearing cosmetics. That might sound like a stretch, but perceptions can often hinge on small factors. One implication is that if your jury is dominated by women, a female witness or attorney may want to go extra-light on makeup to make sure it isn’t calling attention to itself.

The Advice: Use What Makes You Comfortable, But Take It Easy

It is probably a good idea in general to make sure that any cosmetics don’t appear to be too-heavy or unnatural. I think it is useful to look at one of the stimuli images used in the study. The image below, with makeup on the right and without on the left, is a composite developed from photographs of 45 different women with the makeup added by computer. 


The difference is noticeable, of course, but still relatively subtle. The face on the right with cosmetics is not garish and the makeup doesn’t call attention to itself: That’s a good rule of thumb.


Other Posts on Appearance:


Mileva, V. R., Jones, A. L., Russell, R., & Little, A. C. (2016). Sex Differences in the Perceived Dominance and Prestige of Women With and Without Cosmetics. Perception, 0301006616652053.

Image credit:, used under license


February 18, 2016

If You Don’t Know the Answer, Then That’s Your Answer

By Dr. Ken Broda-Bahm: 

IDK ppt

As the question hangs in the air, you can see the tension working on the witness. Her face screws up, she looks at the ceiling, tenses her shoulders, and delays. As you call for a time-out in the preparation session, the witness blurts out, “What should I say? I don’t know the answer!” Well, the attorney and consultant patiently explain, if you don’t know, then perhaps that should be your answer. As long as the witness has done her homework in knowing what she should know, and as long as she isn’t using it as an evasive tactic, then “I don’t know” is going to be the only correct answer to that question. For attorneys and those who work with them, that advice is pretty obvious. Only it isn’t always so clear on the witness’s side of the table. Saying “I don’t know” can feel like failing a test, looking stupid, or falling into opposing counsel’s trap. 

A key message for witnesses to take from the preparation process, however, is that there is great power in “I don’t know.” When it is used thoughtfully and accurately, it is one of many ways to keep the other side from gaining what they have not earned. When the witness doesn’t know, and when the witness shouldn’t be expected to know either, then being comfortable and confident in one’s “I don’t know” will make for a harder examination and fewer mistakes. As simple as that advice is, the subject might benefit from more than the top-level explanation. After all, the fact that it is such a common temptation suggests that there are powerful forces pulling witnesses away from the safety of their own knowledge. In this post, I will take a quick look at why witnesses sometimes avoid the “I don’t know,” some of the ways they try to avoid it, and a few alternative ways to say it that might be more comfortable. 

What Makes Witnesses Uncomfortable With “I Don’t Know”? 

For attorneys, consultants, and witnesses themselves, it helps to be aware of the forces that can push witnesses away from an honest “I don’t know.” In my mind, those forces boil down to some understandable desires.  

  • We Want to Be Helpful

It may not be a conscious wish to help the other side (and if it is, then you have problems that stem beyond witness preparation), but there is a natural human tendency for us to try to be helpful in communication. If someone is asking, it must be because they think we know. 

  • We Generally Want to Look Smart

We learned in school that passing the test means knowing the answer. In the new kind of “test” of a deposition or trial testimony, not knowing the answer feels like failure. A knowledgeable witness, we think, would be able to answer. 

  • We Specifically Feel, “I Should Know This”

In some cases, there may be a basis for that feeling. If we should know, but don’t, then it is a sign that either the attorney didn’t let us know what to expect, or we didn’t do our homework in getting ready for the testimony. 

  • We Fear Closing the Door on Future Knowledge

What if we don’t know the answer now, but we might remember it later. That might encourage hedging just as a way of keeping our foot in the door. Phrases like “Not that I recall right now,” can help to keep that door open for the possibility of a more complete answer down the road. 

How Will Witnesses Act Like They Know When they Actually Don’t? 

Some of these are habits and human tendencies that occur without a lot of conscious thought. But one important goal of witness preparation is to teach and practice the witness out of those habits. 

  • We Will Speculate

When you don’t know the answer, but you still want to answer, then you guess. Witnesses need to not just be told (more than once) not to speculate, but they also need to understand the difference between estimating and guessing, as well as how to put some parameters and qualifiers around any answer based on uncertain knowledge. 

  • We Will Be Tempted Into Hearsay or Privileged Communications

Maybe we don’t know, but we talked to someone who does know. That someone might be another party, or it might be our own legal team. In either case, that probably isn’t the answer. The witness needs to understand that the proper sphere of questioning is what the witness knows and not what he heard from others. Applying that distinction can be tricky, though, and benefits from practice. 

  • We Will Share What They Know on the Topic, Not the Question

Here’s another one that can find its way out as an unconscious response. We don’t know the answer to the question itself, but we do know something on the subject that the lawyer is asking about. Here the witness needs to focus on the question and not the broader topic. If you don’t know the answer, it doesn’t matter what else you know. The answer to the question is, “I don’t know.”  

So How Should Witnesses Say “I Don’t Know”? 

It shouldn’t be hard. Once the witness is talked out of reasons and temptations listed above, the simple and easy “I don’t know” waits on the other side. But it can still help to keep in mind a few different ways to say it. 

  • Say What You Do Know

If you know part of the answer, but not the whole answer, then it can be okay to share what you know. If the lawyer asks a doctor how many procedures she does in a year, it works to say, “I don’t know, but it is probably between fifty and seventy-five.” 

  • Say What You Would Have to Review in Order to Know

If you would have to review a document in order to give a definite answer, then say so: “To say whether the patient’s vitals were normal or not, I would need to look at the chart.” Sure you have some responsibility to review that beforehand, but that doesn’t mean memorizing it. When you’re on the record, you want to be sure, so ask for the documents.  

  • Say Who Would Know (If You’re Sure) 

If the nurses would know, but the doctor wouldn’t, then say so: “You would need to ask that question of the nurses who were doing the hourly monitoring.” Before you say who knows, however, be sure that you are correct, and not putting that party in a difficult spot.  

  • Or Just Say “I Don’t Know” 

Of course, sometimes the simplest is the best. There is no need to justify or defend your lack of knowledge on something. Once you have prepared, your only responsibility is to testify about what you know. So don’t use it as a crutch or an excuse, but if you don’t know, you don’t know. 

In examination, the questioning attorney sometimes plays on the human tendency to be creative, to fill in, and to add more. And that can be a strong tendency. Look at me, after all, I just wrote an entire post on saying “I don’t know.” 


Other Posts on Witness Testimony: 


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February 4, 2016

Be Realistic About Hypothetical Questions: Four Ways to Answer

By Dr. Ken Broda-Bahm: 

What if

A popular focus in the polling for the presidential race right now is to ask about the various potential general election match-ups: What if it was Clinton versus Trump? Or Sanders versus Cruz? Clinton versus Rubio? Sanders versus Bush? As often as we hear that kind of data, professional pollsters will tell you that these kinds of questions, at this stage at least, have virtually no predictive power. The problem is that the question is based on a hypothetical “What if…” scenario. People have enough trouble self-reporting their attitudes in the relatively static context of current conditions. Add in the hypothetical scenario and you are also adding in a number of other unknowns: For example, what kind of amazing turnaround (or spectacular collapse in the other candidates) would have catapulted Bush to the GOP nomination? If the Democrats end up with Sanders, will that be because he effectively courted and converted the establishment wing, or will it be because his progressive wing overpowered the establishment? Our preference in any of these match-ups would be shaped by the events leading up to it. Or, more simply, the hypothetical match-up question posits a future situation that we just have not had a chance to think about or to get used to. Respondents can and will give an answer, but the answer isn’t terribly reliable.

The problems with hypothetical questions apply to litigation as well. Particularly when taking depositions, attorneys will want to get a witness to weigh in on a hypothetical scenario. The physician-deponent, for example, might be asked what they would do if a patient presented with symptoms A, B, and C. That can be an attractive question for the attorney because it secures agreement at a very general level, and that general answer can then be mapped against the more specific facts of the case. The attorney can also use the hypothetical question in order to get around an argument at another level: They can set aside for the moment the physician’s belief that the patient in question lacked symptom B, for example. The hypothetical questioning style can be tricky for the witness, though. Prepared to talk about the facts, witnesses can instead find themselves in a world removed from those facts, and being led along by just providing the seemingly obvious or easy answers can lead to trouble. This post will share four ideas on handling the hypothetical question.

No witness benefits from a scripted approach on any question or type of question. But all witnesses benefit from having a tool box of sorts to draw from when faced with these kinds of questions. Not every item in the toolbox will apply to every question, but some general familiarity with each will keep the witness in good shape, able to answer honestly without being played. Here are four tools:

1. Acknowledge the Hypothetical

The record can sometimes get fuzzy on the question of whether we are talking hypothetically or talking about the actual facts. That confusion is sometimes unintentional, and sometimes a product of the attorney’s attempts to use the hypothetical to make a point on the actual facts. For the witness, it helps to keep the context clear by beginning the answer with, “In that hypothetical situation…” or “That was not the case, but if it was…” Explicitly referencing the hypothetical nature of the question also serves as a reminder-to-self, for the witness, a way to keep the limits of the question in mind.

2. Call Out the Missing Information

The hypothetical is a partial world with some details included and other details unmentioned. Knowing that the patient “had a headache,” would tell you one thing, but not the persistence, the severity, or the myriad other symptoms that would accompany that patient’s presentation. A first line of defense against hypotheticals is to point out that only part of the picture is filled in at this point. Useful phrases to rely on would be, “It depends,” or “Not necessarily.” Don’t give these responses too lightly thought, as you could expect an “It depends on what?” as the attorney’s next question. So you can also answer, “I would need to know X, Y, or Z.” If that necessary context isn’t provided, then the witness can very reasonably answer, “I could not answer that without speculating.”

3. If You Can, Answer It As a Hypothetical

The witness won’t always be able to give a fair or complete answer to a hypothetical question (and when they cannot, they should say so). But when they can answer a hypothetical on its own terms, they should go ahead and do so. Disclaimers, like “Generally” or “Based only on that limited description,” can be added in order to avoid the overbroad concession. But within that hypothetical box, if a known and reasonable answer is evident, then avoiding it isn’t typically worth creating the impression of an evasive witness.

4. Pivot Back to the Facts

Even when the question is hypothetical, it sometimes helps to pivot your answer back to the non-hypothetical facts of your case. For example, if the attorney asked about “A patient who makes repeated complaints of severe neck pain,” the physician witness could reply that “Those complaints would obviously be taken into account, but in this case, the charts and the admitting questionnaire show no such complaints.” Responding in that way requires some anticipation of the opposing counsel’s purpose. It requires understanding that the only reason counsel would ask about the hypothetical is in order to draw a connection to the real. And if the attorney plans to go there, then it can be effective for a smart witness to just go there first.

One way of looking at it is that in a testimonial context, no question is ever really hypothetical: Its only relevance is to make a point on the actual facts. So the hypothetical question is another setting where it makes sense for the witness to be sensitive to opposing counsel’s purpose and to understand the tactics.


Other Posts on Tricky Questions: 

Don’t Be Led (in Deposition)

Counterpunch: Ten Ways to Fight Back on Cross

When Crossing or Responding to Your Opposing Expert Witness, Look for the L.I.E. (Large Internal Error)


Image Credit:, used under license

December 31, 2015

Reject Your Confirmation Bias (Or At Least Try To)

By Dr. Ken Broda-Bahm: 


In 1620, Francis Bacon wrote in Novum Organum, “The human understanding when it has once adopted an opinion…draws all things else to support and agree with it. And though there be an increasing number and weight of instances to be found on the other side, yet these it either neglects or despises, or else by some distinction sets aside and rejects…”  Today, we call that “confirmation bias,” and it applies as much now as it did in 1620. In fact, you could say that we are now in the “Affirmation Age,” — well beyond the information age, we’re at the point where just about anyone can easily find information that supports their existing views. So having the world at our fingertips just means that we can affirm our existing opinions whenever we need to. As Joe Keohane wrote in “How Facts Backfire,” “It’s never been easier for people to be wrong, and at the same time feel more certain that they’re right.”

This tendency to notice, seek out, and remember information that confirms our beliefs naturally applies to jurors deciding your case, but it also applies to lawyers. As a recent Above the Law column notes, decision making within a legal practice can also be determined by this all-too-human tendency. If you’re not sure about your own inclinations toward confirmation bias, you can even take a test offered by the New York Times. New research from the University of Iowa (Cipriano & Gruca, 2014) shows that even in the face of new information showing their earlier beliefs were wrong, and even when that error costs the study participants real money in an investment, research participants will stubbornly cling to those initial beliefs. The experiment asked students to predict weekend box-office receipts for new movies and then buy and sell real money contracts based on those predictions. After making an estimate, participants tended to ignore new information on actual box-office receipts if that information was at odds with their earlier and less-informed predictions. Lawyers are in a parallel position of making early predictions, often with incomplete information: They handicap a case, assess a witness, or make an early judgment on a potential juror, and that estimate inevitably starts to form before all of the data is in. This post shares some thoughts on ways attorneys can work to check their own confirmation biases in these areas. 

Attorneys are analytical by nature and training. And when billing by the hour, they also tend to be quick and results-oriented. That can feed a tendency to form conclusions rapidly. In addition, the attorney’s role is often to buttress one’s own case by actively looking for and highlighting the facts that support one’s own position. You could say that being an advocate means relying on confirmation bias. That can be a benefit, and our system is based on the belief that the truth is likely to emerge when both sides are doing that. However, that habit of thinking can also be a liability at various stages of the preparation process. In this post, I’ll talk about three. 

Mock Trial Confirmation Bias

Ideally, one goes into a mock trial with the goal of testing the assumptions you’ve been making about your case in the long walk-up to trial. Is it as strong as you think it is? Are the weaknesses you fear really the ones you should fear? When it is designed well and prepared carefully, a mock trial can help answer those questions. But when it is implicitly loaded toward your side of the case, it can just end up confirming your expectations. That is not only a waste of time and money, but is also a dangerous way to create false confidence. Clients can end up loading the mock trial in a few ways: 

  • By informally recruiting friends and family who know who they’re working for. 
  • By having the lead attorney argue their own client’s position in the mock trial, and having a less-experienced and less-informed colleague argue the other side. 
  • By relying on “best-case” assumptions on what claims will stay in the case, what evidence will get in, and what instructions will be given. 
  • By using the best demonstrative exhibits, themes, and persuasive appeals for your own side. 

Beyond the design features that foster confirmation bias, there is also the more subtle tendency to pay attention to and gravitate toward that which jibes with our expectations. If jurors see your case much differently than you do, you could be tempted to dismiss them as unrepresentative outliers, or to think that they just didn’t fully understand the case. When listening to mock jurors, or to any other sounding board, litigators need to cultivate an open-minded attitude of curiosity and respect. 

Witness Preparation Confirmation Bias

When you meet one of your own witnesses, you’re likely to develop an early sense of whether they are a good or bad witness. Often that initial assessment is based on how well they come across when they’re in the conversational setting of simply talking with you. That assessment is important, but it isn’t always predictive of how they will be in the deposition chair or on the stand. Some might do worse during their actual testimony due to the formality and the pressure, and some might do better because it is a structured setting (it’s the same reason some shy people are often good public speakers despite their introversion). 

The trick is to avoid turning an early judgment into a self-fulfilling prophesy, especially if it influences your choice to prepare the witness or influences the way you prepare the witness. It is important to be open-minded and objective as you prepare, to focus on hands-on practice, and to evaluate witnesses based on how well they do in practice and not how well they do in conversation. During that practice, it helps you resist your own biases if you have a person on hand who knows less about the case and the witness than you.  

Jury Selection Confirmation Bias

Jury selection is a classic case of making judgments under pressure. That judgment will be almost always based on imperfect information, but in the worst case scenarios, attorneys are making judgments that conform to the expectations they’ve formed based on demographic stereotypes or based on the idiosyncrasies of past experience. 

The problem is most acute when the process does not allow effective oral voir dire based on attitudes, including attorney-conducted voir dire and questionnaires. But even when the process does involve effective tools of inquiry, attorneys need to take care to resist their initial assumptions. If attorneys walk into court believing that jurors’ race, age group, gender or socioeconomic status are determinative of their views on a particular case, then what we know of confirmation bias would suggest that they’ll seek out and use the information that confirms those stereotypes more than they’ll notice and rely on the information that undercuts them. Confirmation bias is avoided when we have the opportunity to ask about individual factors, and when we listen with an open mind, and not with the goal of confirming what we believe to be true.

Another form of confirmation bias can occur in the way we respond to expressions of bias from potential jurors. We expect prospective jurors to follow instructions. The court and the jurors themselves join us in that expectation. So whenever we frame a question as a test of whether the prospective juror can follow instructions, we are asking for confirmation bias. That can be a necessary step in setting up a challenge for cause, but in selecting targets for your peremptory strikes, trust broad and open-ended attitudinal questions much more than you trust that self-diagnosis of “can you be fair.” 


Other Posts on Cognitive Bias: 


Michael Cipriano, Thomas S Gruca. The Power of Priors: How Confirmation Bias Impacts Market PricesThe Journal of Prediction Markets, November 2015 DOI: 10.5750/jpm.v8i3.974

Image Credit:, used under license. 


October 15, 2015

Trust Your Witness

By Dr. Ken Broda-Bahm: 


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. 


Other Posts on Preparing Witnesses: 


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

Photo Credit:, used under license

July 13, 2015

Avoid Gaze Aversion in Your Deposition Video

By Dr. Ken Broda-Bahm: 

Eyecontact 2

Every experienced communicator knows that eye contact can be key to credibility. A communicator who maintains strong eye contact has power and immediacy, while one who avoids eye contact conveys weakness and a lack of confidence. For witnesses, that understanding is easy enough to apply in situations of live testimony: Look at the examining attorney while the question is being asked, then look at the individual jurors while delivering the answer. But what is the correct advice in a deposition? As video-recording increasingly comes to be the ‘standard of care’ that attorneys bring to depositions, should witnesses be making eye contact with the camera, the deposing attorney, or something else?

A new study reported in the current issue of The Jury Expert takes a look at this question. Three consultants from Tsongas (Dominic, Jarman & Lytle, 2015) looked at the question, “Will jurors infer gaze avoidance by the lack of direct eye contact with the camera?” They recruited 274 participants for an online study that presented the same witness clips (either a plaintiff or a defendant) viewed through different camera angles: either directly in front of the witness (next to deposing attorney) or off to the side. In both cases, the witness maintained eye contact with the attorney, although the ‘in-front’ condition, the team reports, created the appearance of eye contact with the camera. The bottom line result is that the camera angle didn’t make a difference. In this post, I’ll take a look (both direct, and somewhat sideways) at the “where do I look” question, the case for a camera- or an attorney-focus during deposition, and the study results. 

The Case for Camera-Focus

The argument for looking into the camera is based on the simple advice to “Look at your audience.” For a deposition video, the most important audience is a future jury potentially viewing a clip during trial. Just as television viewers would expect a newscaster to be looking into the camera, some say jurors would expect a recorded witness to be looking at them. On face at least, this appears intuitive. The article from Dominic, Jarman, and Lytle reports on research going back decades documenting the close connection between eye contact and credibility, both generally as well as in a legal communication context. Direct eye contact creates immediacy and attention, and conveys greater confidence and control. While cultures vary on when eye contact is given and withheld, there appears to be a near-universal belief that liars avoid eye contact. 

The Case for Attorney-Focus

Those who counsel witnesses to instead look at the attorney, reason that focusing on an inanimate object (the lens) in a room full of people could look and feel artificial. Or worse, it could appear too polished or too calculated. A witness who is intentially trying to play to the camera could seem like an advocate and not a witness. In the unique context of a deposition, the witness eying the camera could be less like a television newsman delivering the day’s headlines to the camera, and more  like a guest on an interview show who is oddly ignoring the interviewer and focusing directly on the camera instead. While the camera should be located as close to the deposing attorney as possible (so the direction of the witness’s gaze is brought as close as possible to the camera), attorney-focus advocates maintain that it is easiest and most natural to focus on the person who is asking you questions.

The Research: No Measured Difference

The result from Dominic, Jarman, and Lytle is essentially that it doesn’t matter. “The witness,” they conclude, “was no more or less credible when he was recorded looking directly at the camera than when he was recorded at an angle. Neither camera position offered an advantage over the other.” Now, purists will argue that you can’t draw a conclusion from a null result, and might also point out that the team didn’t offer a complete test because in the “direct” condition, they arguably conflated looking at the camera with looking at an attorney seated close to the camera. They explain:

“One possible explanation for the null results of the current study is that the witness maintained strong eye contact regardless of the camera angle. The witness rarely broke eye contact with the attorney asking questions. While the attorney was not visible, the witness looked straight ahead. In the direct camera angle condition, it created the appearance of looking into the camera. But, even in the angled camera condition, it was clear that the witness maintained eye contact with someone who was off camera.”

Even with that observation, however, the study is consistent with the beliefs that a) eye contact matters, and b) eye contact doesn’t only  mean eye contact with the lens of the camera. It would be interesting for the Tsongas team to conduct a manipulation check on their test video clips: Do participants feel that the witness is looking directly at an off-camera attorney or looking directly at the viewer, via the camera’s lens? When the questioner is off camera, can the research participants tell whether the witness is making eye contact with that questioner versus looking at an inanimate object? It would be very interesting to see a follow-up on this research. 

The Recommendation: Do What Is Comfortable…But Avoid Gaze Aversion

In the meantime, the implication during deposition preparation sessions is to continue to encourage eye contact as an important indicator of confidence and power. Up to this point, I’ve been relatively agnositic on whether this eye contact means a camera-focus or an attorney-focus question. Generally, I’ll counsel witnesses to do what feels natural, which is typically to look at the attorney, not the camera. Occasionally, however, I’ll work with a witness who does better when they’re looking into the camera. For example, when the deposing attorney is either intentionally or unintentionally distracting the witness, a camera-focus can be an easy way to shut down that distraction. 

But at a bottom line level, here’s what witnesses need to avoid: 

  • The ‘table gaze’ of speaking directly into the surface in front of them. 
  • The ‘notes gaze’ of focusing on papers even when the witness isn’t using them. 
  • The ‘friendly attorney’ gaze of looking at your own counsel instead of the deposing attorney. 
  • The ‘swimming gaze’ of looking around the room at everything or nothing. 

All of those are forms of gaze aversion, and a long line of research says that gaze aversion makes you less credible. Instead of avoiding gaze, practice it. During preparation sessions, look at the attorney and don’t worry that in doing so you’re averting gaze from the camera. Dominic, Jarman, and Lytle note, “The participants did not penalize the witness, or otherwise judge them to be less credible, since they were making eye contact, even if it wasn’t directly with them.” 


Other Posts on Witness Nonverbal Communication:


Dominic, C., Jarman, J. W., & Lytle, J. M. (2015). Does Deposition Video Camera Angle Affect Witness Credibility? The Jury Expert 27:2 (May, 2015). URL:

Photo Credit: a selfie by the author 

April 20, 2015

Bottom Line Your Deposition Advice: Four Rules

By Dr. Ken Broda-Bahm: 


Listen, pause, use your own words, and then stop. Sometimes witness advice should be covered in detail, and at other times you just need to bottom line it. A week or so ago, I was arriving for a meeting with attorneys just as a witness was leaving. “Is there any simple advice you would convey before his deposition?” one of the attorneys asked. What I came up with on the spot is just that list of four: listen, pause, use your own words, and then stop. At the time, I noticed that the attorneys in the room wrote that list down in their own notes. Since then, I’ve used that simple quartet in a few other meetings with similar effects. So, I thought I might be onto something, and this may be a list worth sharing. If there is one sentence I would want witnesses to keep in mind as they head into a deposition, it would probably be that: listen, pause, use your own words, and stop. 

Of course, there is a great deal more to effective testimony. The list of do’s and don’ts could go on for hours, and there is a nuance to much of the advice: “Say enough, but not too much,” or “Don’t be led, but don’t be combative either,” for example. These questions of balance can only be resolved in the context of sustained practice focused on the witness’s own fact pattern with specific feedback offered. It doesn’t take much for the other side to gain something pretty useful in a deposition: A witness who is 99 percent effective can still end up giving away too much during a bad moment. But even after witnesses have heard all the do’s and don’ts, and even after they’ve had a chance to practice, many witnesses will still want a simple mantra they can hang onto and internalize. For this post, I want to briefly break down those four simple rules.  


Deposition listening is not like everyday listening. The witness is not just listening for the gist of the question, and is not just listening for the general topic. The habits that we employ in general conversation and in our working lives are not enough. In a deposition, every word matters, and witnesses need to focus in a way that gives each word force and effect. As the questioner is asking a question, the witness’s focus needs to be, not yet on thinking of a response, but on just processing and comprehending the question. When the question isn’t fully understood, then that needs to be the response: “Could you please rephrase?” 


It is hard for many witnesses to do: They either want to appear that they know all of the answers immediately, or they just want to get it over with. But the witness who pauses has a huge advantage. The pause does several things. First, it is a chance for the witness to compose a response (that response shouldn’t be composed while listening to the question — see rule #1). Second, the pause provides a chance to settle, to inhale and exhale. Third, and more practically, it is a chance for the attorney to get an objection on the record. Fourth — and this is the one that often sells it for the witness — it is often deeply irritating to the attorney taking the deposition. That attorney wants to establish  a fast and continuous flow to the questioning, but cannot when witnesses take their time to answer. 

Use Your Own Words

The point of a deposition is to discover evidence, and the questions aren’t evidence, just the answers. At least, that is the way it is supposed to work. However, when questions end with something like “…isn’t that right?” and when answers limit themselves to “Yes,” then it is really the attorney taking the deposition who is creating the testimony. Without answers in the witness’s own words, it will be the attorney’s terms, the attorney’s selection, and the attorney’s emphasis that will form the official record. Instead of just responding with “Yes” or “No,” witnesses should, more often than not, answer in a complete sentence that is phrased as they would phrase it. Over the course of a whole deposition, that simple technique will usually make for a much more protective record. 

And Then Stop 

Sticking to the question means answering just the question — completely but simply — and then stopping. If the questioner needs more, let them ask for it. Don’t just open the taps by providing unrequested elaboration or by addressing aspects of the topic rather than the question. Oversharing can result when the witness is trying too hard to explain or to justify, or is just nervously filling in time. The run-on witness can also be a goal of the deposing attorney who wants to use a ‘baited silence’ in order to encourage a witness to volunteer or to self-incriminate. Witnesses should think of a question as creating a clear boundary of relevance — a fence. If you don’t know where the fence is, the question isn’t yet clear enough. When answering, provide a complete answer to what’s inside the fence, but don’t step outside of it. 

Naturally, there is more to it than that — a lot more. But I think that simple list of four provides a pretty good mnemonic foundation. Witnesses who are able to remember and to practice those four won’t necessarily be perfect, but they will be well on their way.


Other Posts on Witness Preparation: 


Photo Credit: Christopher Sessums, Flickr Creative Commons

February 16, 2015

Protect Your Witness Prep Work Product

By Dr. Ken Broda-Bahm: 

Vault Door

Is there anything wrong with a witness meeting with a communication specialist in order to prepare for deposition or trial testimony? Maybe 30 years ago, the answers would have been “yes,” “maybe,” or “best not to arouse suspicions.” But trial consulting has come a long way from those early days when witness preparation facilitated by specialists was sometimes seen as just a new way of woodshedding. Now, the practice is quite normal. In higher stakes cases, it is a safe bet that both sides are bringing in communications or psychology experts to help the fact witnesses prepare testimony that is clear, confident, and effective. 

But that doesn’t mean the fact of those meetings, much less the substance, ought to be broadcast. Attorneys, consultants, and clients all have a strong interest in protecting the work product that is at the heart of witness preparation. In recent years, there have been a few notable incidents where opposing counsel have tried to “out” the consultant and open the door to what was discussed. In the Jeffrey Skilling (Enron) trial, for example, the consultant was identified in court, and her C.V. was put up on the screen. Dr. Phil McGraw –once a trial consultant — was also the subject of a prolonged court battle aiming for discovery. There have been an additional handful of cases around the country that have also sought to discover witness preparation work product. By and large, the resolutions of these cases have been on the side of protecting the information: barring exceptional circumstances, opposing counsel has no legitimate reason to inquire into meetings that are clearly attorney work product. Even more encouraging, attempts to pierce that veil have been notably rare, especially given how common the practice now is. Still, there is reason to be cautious. This post will point the reader to a few important articles on the subject and share a few broad principles that ought to be applied by counsel, consultants, and witnesses.  

One of the first articles on the subject, and one that has been extensively cited in a number of the court opinions, was written by Stan Davis and Tom Beisecker in 1993: “Discovering Trial Consultant Work Product: A New Way to Borrow an Adversary’s Wits?” Thankfully, in the time since, it has not turned out to be a very effective way. A more recent article by David Perrott and Daniel Wolfe (2010) in The Jury Expert provides a very good overview of the law, including the critically important third circuit case that consultants know affectionately as the “Dr. Phil case,” but is more properly known as In Re: Cendant Corp(3d Cir., No. 02-4386, Sept. 16, 2003). The bottom line result is that, while opposing counsel can ask about the fact that a meeting occurred and who attended, the inquiry should stop there. 

Of course, this is still an area of emerging law, and there are some variations (covered in the Perrot and Wolfe article) regarding both purpose and venue. But I do want to share a few general principles that should be followed everywhere. 

For The Attorney: Be There

We will occasionally have attorneys ask us if we can simply meet with the witnesses and get them ready while counsel attends to other things. In every case, we will say, “No, you or one of your colleagues or associates need to be there.” In theory, any witness preparation session is being conducted at the attorney’s direction and for the benefit of the case. In my mind that makes it work product. But, alas, appeals courts are not obligated to follow my opinion, and the issue of whether an attorney-free meeting qualifies as work product has not yet been resolved. When the attorney is absent, it is arguable, but when present, the case for work product protection is quite solid. In addition, the attorney plays a critical role in the session by conveying her own expectations for witness behavior, and for conducting mock questioning. 

For the Consultant: Make Sure the Purpose is Clear

For a number of reasons, it is important to make sure everyone understands the purpose of the meeting. Witnesses probably won’t be asked, or if asked will be instructed not to answer, but it is still reassuring for them to know that the goals are absolutely legitimate. Even if those goals were to be disclosed in testimony, it would not sound at all nefarious. For example, according to the witness preparation Standards and Practice Guidelines of the American Society of Trial Consultants, the goal of witness preparation is “To increase witnesses’ understanding, comfort and confidence in the process of testifying for deposition or in court, and to improve witnesses’ ability to truthfully present testimony in a clear and effective manner.” Nothing wrong with that. Most jurors, if they were ever to be on the stand, would probably want access to the same orientation.  

For the Witness:  Know What to Say If Asked (and Where to Stop)

The question, “What did you do to prepare for your testimony?” is a predictable one, especially for deposition. Follow your attorney’s lead on how to answer it. Many will say that the correct answer is simply “I met with my attorney,” and to answer no further questions on the matter at your own counsel’s instructions. Others will say that the follow-up question, “And who else was present at that meeting” is a legitimate one. Depending on the witness’s recollections, the correct answers might range from, “some members on my attorney’s team,” to “an advisor who was working with my attorney.” In no case, should the inquiry extend beyond that to the structure or the content of the meeting. But witnesses should know that the purpose is to review testimony and to familiarize oneself with the norms, not to “rehearse,” and not to be “coached.” Beyond the semantics, and even the ethics, good attorneys and witnesses know that woodshedding does more harm than good, and can crush a witness’s confidence. 

Attorneys prepare, judges prepare, and even the clerks and the bailiffs prepare for their respective roles. How unfair would it be if those on the stand — the ones who are supposed to be the sources for all the facts — were the only ones not permitted to engage in effective and informed preparation?

At this stage, witness preparation is not novel, and should not be much of a concern. And there is some hopeful evidence that this perspective is shared by potential jurors as well. A study (New, Schwartz, & Giewat, 2006) looked at the opinions of 500 jury-eligible respondents and found that nearly three-quarters believed that it’s a good idea to prepare witnesses to testify, with less than 15 percent believing that it showed the witness had something to hide. The more the public understands about these services, the better. So attorneys and consultants do well to promote that understanding, even if we have to do it one witness at a time. 


Other Posts on Trial Consultant’s Role in Witness Prep: 


Davis, S. D., & Beisecker, T. D. (1993). Discovering trial consultant work product: A new way to borrow an adversary’s wits. Am. J. Trial Advoc.17, 581.

New, C., Schwartz, S., & Giewat, G. (2006). Witness Preparation by Trial Consultants: Competitive Advantage or Invitation to Discoverability. Washington State Bar Association, May, 2006. 

Perrott, D. A., Wolfe, D. (2010). Out and Proud: Ethical and Legal Considerations in Retaining a Trial Consultant to Assist with Witness Preparation. The Jury Expert, January 2010, 53-62.

Image Credit:, used under license

January 19, 2015

Don’t Be Led (in Deposition)

By Dr. Ken Broda-Bahm: 

586340_mThe name “Discovery” doesn’t quite do justice to the litigation phase it describes. When it’s done well and with purpose, the point of discovery isn’t so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney’s fondest wish is not to discover the witness’s view of what happened, but instead to get that witness to confirm the attorney’s version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn’t allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead. 

When I’m preparing a witness for deposition, I always make sure the witness has a full understanding of the adverse counsel’s strategic imperatives. More importantly, I emphasize that witnesses should have strategic imperatives of their own. And giving up control is the surest way for a witness to lose those imperatives. One timely post from the AgileLaw blog perfectly illustrates what the lawyer taking a deposition is after. Cyclone Covey’s post entitled “Why You Must Choose Your Words Carefully in Deposition” basically boils down to the advice to carefully and consistently lead the witness throughout the deposition. This advice from attorney and AgileLaw founder Cyclone Covey, makes sense from the deposing attorney’s perspective. But for this post, I want to consider that advice from the witness’s perspective, using Covey’s post as a kind of foil. Taking a series of quotations from that post, I will break down some of the how’s and why’s of leading questions, and lay out some of the witness’s best tools of resistance. 

Deposing Attorney Wants Control:How do you get the witness to say exactly what you want them to say? Something that’s perfectly quotable? Something that makes your brief sing?”  

In Response: Use your soundbites, not theirs. As Covey’s starting question indicates, the goal of the attorney taking the deposition is to plant language that they can then return to when briefing or arguing to the court, or further down the road, in previewing your position for a jury. One example of this search for the “perfectly quotable” can be found in medical malpractice plaintiffs’ quest to get the doctor-deponent to agree with a simple “safety rule,” like the notion that “Doctors should never needlessly endanger their patients.”  Say, “Yes,” and you’ve given them their soundbite. Instead, put it in your own words.  

Deposing Attorneys Wants the Illusion of Knowledge:  “Leading questions are more forceful, and they suggest to the witness you know the facts.”  

In Response: Don’t take your facts from your adversary. The deposing attorney seems to know what she is talking about. And when she is able to hit you with a series of carefully-prepared questions that are liberally sprinkled with facts, it is easy to take those facts as true. What the witness needs to remember, though, is that whether they are true or not, your role is never to confirm what you don’t know. When the question introduces facts, or provides a level of detail that goes beyond your level of knowledge or recall, then the only correct answer is going to be “I don’t know.” 

Deposing Attorney Wants Agreement:Many witnesses will agree with facts that you state if you phrase the questions as leading questions.” 

In Response: Agree with the obvious, but fight the key areas in dispute, and work with your lawyer in advance in order to understand the difference. A witness who “doth protest too much” and who never agrees can be a liability. But the more common problem, especially for the less experienced, is the witness who agrees too readily. Even when a claim built into a leading question seems literally true, it is probably phrased in words that you wouldn’t have chosen on your own. In those cases, agree where you need to, but rephrase where you can.  

Deposing Attorney Wants Over-Precision:When you ask leading questions be sure to give details and avoid “wiggle words.”  

In Response: Stick with the level of precision that you are comfortable with. That may mean finding your own level of “accurate vagueness” and staying there. If a doctor is asked how many times he’s performed a procedure, the answer might be “More than fifty but fewer than a hundred,” and it really might get no more precise than that. From the deposing attorney’s perspective, the most precise answer is going to feel like the most accurate answer. But reality might require more vagueness, and the borders of the witness’s own perceptions and recollection might need a few wiggle words. 

Deposing Attorney Wants to Transform Uncertainty:  “When the witness is unsure they are more likely to agree with your assertion when the question is leading and the witness perceives you to know the facts in detail.” 

In Response: Be confident in your uncertainty. Not knowing what you can’t be expected to know isn’t a weakness. To be sure, this isn’t an excuse to just wallow in a lack of knowledge. Instead, prepare and be sure about what you should be sure about, but don’t go any further. Never be more certain than your own perception and recollection permits. There is one aspect of psychology that bedevils the typical fact witness: We expect our memories to be better than they actually are. Instead of responding to that gap by filling in the picture, or agreeing with opposing counsel when she fills it in, witnesses need to just identify the level of recollection they’re comfortable with, and stick there. 

Deposing Attorney Wants the Definite Answer: This is another benefit to the leading questions: it forces you to follow up and get specific Yes/No responses to specific details.” 

In Response: Condition your answer when necessary. It often happens, just after a witness gives a perfectly comprehensible answer, albeit one phrased in the witness’s own words, that deposing counsel will reply with, “So, is that a ‘yes’ or a ‘no’ to my question?” The attorney may understand your response perfectly, yet still wants that rubber-stamp “yes,” on his own language. Where you can give a “yes” or “no,” do so, but in your own words. Where there isn’t a definite “yes,” or “no,” — e.g., when “it depends,”  then say so, and say why. 

Bottom Line, Deposing Attorney Wants to Be the Witness. 

1. If the witness agrees with you, then they’re agreeing with YOUR version, YOUR phrasing, YOUR characterization of facts.” 
 2. You take charge of the deposition, because you’re the one who’s asserting what’s happening.”  

In Response, You Be the Witness. This last quotation from Covey may be the perfect encapsulation of what’s wrong with that this perspective: With a weak witness, the attorney becomes the witness. The best piece of advice for maintaining a witness’s own personal power: You’re the witness, you know what happened, and it is your perception, your terms, and your answers that are important. 


Other Posts on Powerful Witness Communication: 


Image Credit:, used under license. 

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