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.