Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
For politically-oriented news junkies, this past Thursday featured must-watch fare. Former FBI Director James Comey raised his hand, took the oath, and testified about his carefully-documented meetings with his old boss, President Donald Trump. What stood out from his testimony was the number of times he called Trump a liar, by implication and, at times, using that actual word. Trump lied, according to Comey’s testimony, about the disarray within the FBI, and in his many statements to the media denying that he had asked for Comey’s loyalty and requested that he let go of the investigations into Michael Flynn’s alleged collusion with Russia during the campaign. While the most conservative sources treated the testimony as nothing new, or perversely as a ‘complete and total vindication’ of Trump, everywhere else, the testimony was taken as a sensational indictment of Trump and his young presidency. Of course, it is high-stakes messaging for any witness. While Comey’s bluntness raises his credibility before some audiences, it certainly lowers it before other audiences, potentially putting him in the category of the disgruntled ex-employee.
A parallel risk exists for witnesses in the courtroom or in the deposition chair. The question of whether someone else is lying is generally dangerous territory: an invitation to step outside the zone of your own knowledge, potentially reducing your credibility in the process. In Comey’s case, that step is probably worth it. Either Comey or Trump is lying, and barring the appearance of any ‘tape,’ Comey has the oath and the contemporaneous notes on his side, and according to a recent YouGov poll, a mere 26 percent of the public trusts Trump more than Comey. But in the case of the typical fact witness, the statement that someone else is lying can be the proverbial ‘bridge too far.’ In this post, I’ll share some ways that the more conventional witness ought to handle those questions with care.
Counsel asks you something like,
So, if Ms. Jones says that didn’t happen, she is lying, right?
Now what do you say? A question like that is a reason to stop, think, and tread carefully. In potentially calling out the liar in courtroom or deposition testimony, I think there are four important considerations.
Avoid It If You Can
Personally, of course, you might be thinking, “Yeah, if Ms. Jones says that, she would totally be lying!” But falling too easily into that answer sets up an often unnecessary conflict. Now you have that “liar” label being exchanged between boss and employee, doctor and patient, company and customer, or between business partners. Often the perceived conflict itself can impact your credibility. It is usually the better course to just stay within your own sphere of knowledge (“I can only testify to what I know…”), present that as credibly as you can, and let your fact finders draw their own conclusions on who is telling the truth. Of course, the implication of your testimony might be clear: If you’re telling the truth, then the other party is lying. Still, it often helps to avoid explicitly drawing that conclusion. In some cases, probably in Comey’s case, after some thought you might decide that you do want to deploy the ‘L’ word, but it should never be a spur-of-the-moment decision.
Keep It Descriptive, Not Evaluative
The reason why the “liar” label is loaded is its emotional connotation. It is an accusation and not just a description. So the answer for the witness is often to keep it descriptive:
Counsel: So, Ms. Jones is a liar?
Witness: I can only testify to what I know, and that never happened.
Counsel: So she is a liar?
Witness: That did not happen.
Don’t Get Into Motives
If President Trump is ever formally accused of obstruction of justice, then his intent is going to be key. At the same time, Comey was wise to avoid attributions of Trump’s intent. He can say how he took it (“As a directive”) but he cannot and did not talk about how Trump meant it. That judgment is for the ultimate fact finder to make. So even though you as a fact witness might have a strong opinion on why a fact witness is saying something (“Of course she would say that, because that is what helps her lawsuit”), that is an attribution that can be pretty robust when it comes from a jury, but coming from a witness, it just sounds like vindictive speculation.
Remember, Your Credibility Comes First
Commentators on Trump and Comey have observed that, if this dispute ends up being framed as a credibility battle between the two, then the President might be at a disadvantage with a large slice of the public believing that his relationship with the truth is about as good as his relationship with Rosie O’Donnell. That underscores what we tend to say about glass houses and throwing stones, and reminds us of the most foundational advice for all witnesses: Your own credibility comes first. And that is not something you want to set aside for anything. For example, I recall one case where one of our witnesses felt that it was critical that the jury understand what a dishonest sleazeball this fellow on the other side was. Our witness wanted to pretty much call him a “dishonest sleazeball.” What I said in response essentially had three parts:
- They’ll get that, just from the facts that we are laying out.
- They will get that best if you are as credible as you can be.
- And you will be as credible as you can be if you take the high road and just stick to the facts.
Just talk about what you did, saw, and knew. In the privacy of the deliberation room, the jury might just decide that person is a liar. But that opinion is more trusted and more durable when it is a judgment that they come to on their own and not when it comes as an accusation thrown by a witness who now seems to have an axe to grind.
Other Posts on Challenges in Testimony:
- Avoid Gaze Aversion in Your Deposition Video
- Know When to Pursue Witness Inconsistency and When to Let it Go
- Avoid Distractions on the Stand
Image credit: Angie Linder, Flickr Creative Commons