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?
Q: And it would have been relatively cheap and easy to have used it, wouldn’t it?
Q: But you didn’t use it, did you?
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:
- Keep Your Witness Out of the Woodshed
- Experts: Use Small Words
- Witnesses: Don’t Adopt, Do Adapt
- Don’t Be Led (in Deposition)
Image credit: Created by the author