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The code of silence

By: DOLAN MEDIA NEWSWIRES//January 9, 2015//

The code of silence

By: DOLAN MEDIA NEWSWIRES//January 9, 2015//

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By Daniel Small
Dolan Media Newswires

shhhQuestion. Pause. Answer. Stop.

That’s the unnatural rhythm of the witness environment. And there are rules for witnesses during the first three steps.

Question: Don’t answer a question you don’t understand.

Pause: Count to five after each question.

Answer: Don’t guess.

But the final step, stop, also requires consideration.

Silence is a part of being a witness that most people are not prepared for. In conversation, we are used to filling the silences.

But witnesses have to be prepared to answer and then stop. Don’t volunteer. Don’t fill the silences.

That is unnatural in several respects. The essence of conversation is connections.

If you’re chatting over lunch and your companion asks if you saw a recent movie, your response is probably not a simple “yes” or “no.” Rather, you talk about whether you liked it, who you saw it with or other movies you’ve seen.

The conversation could start with a question about a movie and, through a series of understandable connections, end up with a discussion about a common acquaintance who is a dangerous driver.

In the question-and-answer world of a witness, connections are not the goal. The job of a witness is to answer the questions carefully, briefly and precisely, and then stop.

The questioner’s job is to ask the right questions to get the information he or she wants. It should not be the witness’s job to help the questioner ask better questions or to volunteer information beyond the narrow lines of the question.

Answer each question at its most basic level. Move forward in small, easy steps. Do not try to help the process along or anticipate where it might be going. The goal should be to give the questioner nowhere to go but forward, toward the end.

Some time ago, I represented an investment manager in testimony before the U.S. Securities and Exchange Commission. Throughout a long day of questioning, he did an excellent job of listening carefully and keeping his answers precise and simple. It was hard work, and it went against his talkative nature.

Finally, late in the afternoon, he faltered. He answered a question completely, stopped and then thought of something he wanted to say that was related to the question.

The good news was that as he started to say something else, he remembered the rule and stopped. The bad news was that the SEC lawyer, tired of having to deal with a careful witness, picked up on the hesitation and pushed the witness to say what he had started.

Before I could remind him that he already had answered the question, he was off on a tangent. Although it was an insignificant topic, the questioner was so intent on pursuing something that had come out spontaneously that it went on and on for half an hour before we got back to the original line of questions.

During the next break, my client looked at me sheepishly and said, “You don’t have to say anything. I know what I did wrong.” In an effort to help things along, he had wasted half an hour that would have been saved by silence.

Not volunteering means realizing that silence is OK. It’s a hard adjustment, and experienced questioners know that. They know that silence can be an effective tool, and they play off of that natural discomfort.

A questioner may use silence by waiting at the end of the witness’s answer, as if surely the witness cannot be finished.

Do not play that game. The witness should use the silence to prepare for what is ahead, rather than to volunteer more about what has passed.

There are two general exceptions to “do not volunteer” that a witness and his or her lawyer should discuss.

The first is the “simple misunderstanding” exception. If the questioner and witness are becoming bogged down because of a clear and simple misunderstanding over a basic fact, it may be worthwhile to volunteer to correct the error.

The second exception is for “core themes.” Every topic has a few key themes that a witness may wish to get across.

The more involved a witness is with the topic, the more important the themes become. If a witness and lawyer agree on the themes, the two may want to consider whether and when the witness wants to go beyond the simple answer to a question and volunteer information to support it.

But, generally, the rules apply: Question. Pause. Answer. Stop. Practice the stop and practice silence.

Daniel Small is a partner in the Boston and Miami offices of Holland & Knight LLP. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses.”

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