Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
It seems like the simplest piece of witness advice imaginable: Answer the question. But, at least judging by the number of times a witness doesn’t quite answer the question, it is a little more complicated than that. For a variety of reasons, many witnesses end up dodging the question. That can be a purposeful (and unwise) strategy, or more likely, it can be accidental or more apparent than real. But in nearly all cases, a perceived dodge is going to be more harmful to credibility than an honest answer would have been. Even when it is an answer that hurts you on some level, you do less harm in the end by giving the honest answer without a dodge. When the lawyer on the other side has to fight for you to just focus on the question, or pursue you for an answer, then it just serves to highlight the bad fact that you’re desperately trying to avoid.
When an audience believes you’re dodging, that hurts your credibility. Now, recent research (Clementson, 2017) shows that as well. The study in the current issue of Journal of Language and Social Psychology looked at a younger sample of university students as well as an older sample outside the university. Each group was shown a video of a politician either answering or dodging a question by changing topics. The results? For both groups, they’re exactly what you would expect: The perceived dodge reduces the trustworthiness of the speaker. The author, David E. Clementson of Ohio State University, believes that this is because people speculate and ruminate on the reasons for an apparent unwillingness to answer the question. In short, as summed up by the title of a write-up of the study in Research Digest, “When you dodge the question, it makes you look dodgy.” In this post, I’ll look at some of the ways a witness can avoid looking dodgy by avoiding the purposeful, the accidental, and the apparent dodge.
The Purposeful Dodge: Don’t Do It
If there is a fact or some other kind of admission that you think would make you look bad, then it is tempting to try to avoid that. It is human nature. But here’s one critical and unavoidable fact that each witness needs to take to heart: You’re not going to be able to avoid answering the tough questions. Try to avoid them, and all you’re going to do is look even worse for trying and failing to avoid the question. If a given fact damages you, then take that as a given, find the best answer the facts allow and give that answer the first time the question is asked, without making the questioner work for it. Not only will you be protecting, perhaps even enhancing, your credibility by making that admission, you’ll also reduce the amount of emphasis that an audience will place on that answer. After all, if it takes just one question and answer, and not 17 questions and answers, as counsel chases you for an answer and tries to pin you down, then the issue ends up occupying a lot less time.
The Accidental Dodge: Pay Attention
The accidental dodge is when you think you’re answering, but you’re not. For example, opposing counsel asks you, “Did you see this memo before September 5th?” and you begin talking about the memo, what it says, why it was written, and what your reactions to it are. You aren’t trying to be evasive. In fact, you’re doing the opposite and sharing information like crazy (which is almost as bad as being evasive). The problem is that the question wasn’t, “Tell me all you know or think about the memo,” the question is, “Did you see it before September 5th?” Witnesses sometimes make common listening mistakes, reacting to the intent behind the question, answering what they predict will be the next question, or simply treating the question like a topic and not like a question. Witnesses need some practice being careful and literal in their listening. The example I like to use: If someone asks you if you know what time it is, the answer is “Yes,” not “Ten o’clock.” And the answer certainly isn’t, “Here’s how I’d build a watch…”
The Apparent Dodge: Make it Clear
The apparent dodge occurs when you believe that you are answering, but an observer might think that you’re not. Based on your word choice and structure, at least the early part of your answer seems to be a dodge rather than an answer. For example, if opposing counsel asks you, “Did you review the documents,” and you know the answer is “No,” but you want to break out of the “Just yes or no” trap and think an additional qualification or explanation is necessary, you might start your answer by saying, “My role in the transaction was complex, and there was a full team involved, so…” You might intend to add the “No,” once you get to it, but in the meantime, you risk counsel or the judge becoming irritated and possibly interrupting, and you risk the jury perceiving that you are dodging rather than answering. The best advice in this sort of situation is to put the answer first so everyone knows you are answering and not dodging. If counsel jumps in with the next question after hearing the “Yes” or the “No,” then there’s a risk that you’ll not get a chance to provide the full explanation. But it’s a small risk, since your own lawyer is there to make sure you have an opportunity to provide a complete answer — you should not be cut off. But in any case, even if you are, your own credibility is protected since the jury or other ultimate audience would know that you are not dodging and you are trying to provide an explanation.
Other Posts on Effective Testimony:
- Take Care When Calling Out a Liar
- Use Your Deposition as Your Sword and Shield
- Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap
Clementson, D. E. (2017). Effects of Dodging Questions: How Politicians Escape Deception Detection and How They Get Caught. Journal of Language and Social Psychology, 0261927X17706960.