Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
When advice is given on a general subject, it can sometimes sound a bit like platitudes. And, as with platitudes, it often seems like one cancels out the other. “Look before you leap,” the saying goes, but, “He who hesitates is lost.” The advice given to a witness before testimony can sometimes come across that way. And in the stress of impending testimony for a deposition, a trial, or a hearing, the feeling that one is being given contradictory tips can just add to the stress.
Ultimately, there is no neat and simple recipe for effective testimony. If it could be accurately boiled down to a simple list of “Do this,” and “Don’t do that,” then things would be a lot easier for attorneys preparing witnesses for testimony, and a lot easier for the witnesses themselves. Similar to platitudes, there are some demands of the testimony situation that might seem to be naturally in tension. When I am meeting with witnesses, I will often say that explicitly: “Nearly everything that we are telling you is a matter of balance. Nearly every suggestion we make can be taken too far or not far enough. It is a matter of finding a sweet spot between two extremes.” The demands can vary from case to case and from witness to witness, and finding the right balance often takes an understanding of nuance, and always takes practice. In this post, I’ll review seven areas where the advice might sound contradictory, but where the solution is to find a point of balance in between.
1. Don’t Volunteer…But Answer on Your Own Terms
The Conflict: We don’t want a witness to gratuitously spill out information that wasn’t asked for, not necessarily because there’s anything to hide, but because we don’t want to aid and open doors for the other side. But we also don’t want a witness to just meekly say “Yes” to an adversary’s phrasing which is likely to be unfair, selective, or incomplete.
The Balance: Use your own words, but focusing on the question that’s been asked. Answering in terms that represent your own thoughts is good, but supplying details or addressing topics that have not been addressed yet is bad.
2. Shorter is Better…But Don’t Let the Other Side’s Lawyer Do All Your Talking for You
The Conflict: Since a deposition creates a record the other side can use against you, saying less can seem a lot safer. At the same time, saying as little as possible — just “Yes,” “No,” “I don’t know,” or “I can’t remember,” for example — leaves the control over language and emphasis entirely with the questioning attorney.
The Balance: In deposition, answer in a sentence. Use a complete sentence in which the words are those you would choose. But use a simple sentence. And generally, unless the question specifically calls for an open-ended overview or narrative, make it just one sentence.
3. Don’t Play Lawyer…But Understand What the Lawyer on the Other Side is Doing
The Conflict: Witnesses should not be distracted by the layers of legal meaning and strategy, and should not try to outfox an experienced lawyer on the other side. At the same time, many traps are a lot easier to evade if one can see them coming.
The Balance: Understand the goals and general strategies that opposing counsel is trying to employ, both generally and in the specific case. Then, take it one question at a time, answering like the witness you are, not the lawyer you’re not.
4. Make Sure It’s Clear…But Don’t Teach
The Conflict: The answers on the record should not seem to be misleading, incomplete, or uninformed. But trying to teach the other side at the deposition stage risks broadening the deposition and revealing too much of the trial strategy.
The Balance: Clarify in deposition only as much as is necessary to create an answer that you can be consistent with at trial. Save the actual teaching for the moments when you are looking at a judge or a jury in a courtroom.
5. Hold Your Own…But Don’t Fight With Counsel
The Conflict: We don’t want a witness who is pushed around by counsel. That lets an adversary control too much about the testimony and the resulting impressions. But we also don’t like a witness who is drawn into a conflict with counsel, because a fight is nearly certain to trash your credibility.
The Balance: “Assertive” is good, and that means choosing one’s own words and politely staying strong in the face of attempts to degrade or manipulate your testimony. But “aggression” is bad, and that means reacting personally, defensively, or with hostility. The emphasis is on testifying for the record for the fact finder, not on fighting with the other side’s lawyer.
6. Stay Calm…But Show Some Righteous Indignation if Attacked
The Conflict: A calm witness is a credible witness. But if you’re accused of doing something terrible, jurors wouldn’t expect you to stay calm. They’ll want to see some righteous indignation to show that you’re not sanguine about being accused of being a liar, a cheat, or a killer.
The Balance: Your feelings about the situation or the accusation can be explored in direct examination during trial. In a deposition, you should, for the most part, stick to the facts. You can’t necessarily control a natural human reaction, and you don’t need to. But a specific attempt to demonstrate how you’re feeling about a question is not necessary and could backfire.
7. Be Confident…But Don’t Be Arrogant
The Conflict: Ultimately, credibility comes across as confidence, so we want a witness who is poised, certain, and unshakable. At the same time, a superior attitude can come across as a character flaw, or can suggest a witness who is dismissive of the situation and the legal process.
The Balance: Be as confident as possible, but remembering at all times that the tone is one of helpfulness. Whether you’re testifying in deposition or trial, the focus is on an actual jury’s or a potential future-jury’s understanding. So while there might be a motivation to direct some attitude at opposing counsel, there should never be a motivation to direct it to a jury. The unspoken feeling behind all answers should be, “I want to help you understand the facts.”
Other Posts on Witness Preparation:
- Be the Director of Your Witness’s Direct Examination
- Overlearn Your Deposition
- Prepare Your Witness: Top 10 Posts
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