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.