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Making an impact on a witness

In past columns, I’ve talked about the “10 Rules” for witnesses as a way to help bridge the wide gap between normal conversation and communicating in a witness environment. The first is easy and natural; the second is difficult and unnatural — and treacherous. The language, rhythm and goals of each are very different.

One of the main reasons for — and results of — that difference is the role that questions play in each environment. We don’t think of it this way, but questions in a conversation are not really questions. They usually are prompts: a way to move the conversation in a general direction and keep it flowing.

The specific answer to the specific question is rarely the real goal; rather, it is to introduce or redirect a new subject area, a new issue or a new idea. If the precise answer to the question is truly important, there is time to get to it.

By contrast, questions in a witness environment are, truly, questions. Each word is important, every assumption and misunderstanding is an integral part, and to answer a question is to adopt all of its problems.

So a witness must listen to every word of a question with a focus and precision that we never bring to a normal conversation. Understanding that gap between conversational prompts and precise inquiries is essential to preparing to be a witness.

That gap raises a challenge to counsel: How do we make enough of an impact on a witness to help them understand? Over the years we have developed one method that sometimes helps witnesses draw the distinction between a conversation and witness testimony and consider in real terms the importance of the “10 Rules.”

The idea is to ask, at the beginning of your first meeting with the witness, one or more simple broad conversational questions — prompts leading to a normal “flow.” Then, after talking about the language and rules of being a witness, return to that question; it’s a dramatic way to help the witness analyze it and the extraordinary differences between those two means of communicating.

For example, some years ago I was asked to prepare an investment manager who had worked in Moscow and was flown back to the U.S. to give a deposition in a complex financial case. The problem was that between her travel schedule, my travel schedule and the case schedule, the deposition was coming up very quickly.

There was very little time to prepare. The questions became: How do we make an impact? How do we drive it home? She came in and we chatted for a while. We went over that important introduction phase in preparing witnesses, and I asked her typical questions one might ask someone to prompt a good conversation: “How are things in Russia?” and “How was your flight?” Both questions naturally prompted interesting discussions of various issues.

After a while we went into preparing her as a witness, talking about the language of question and answer and how different it is from a typical conversation. Question, pause, answer, stop. The 10 Rules. After we had done that for a while, I said, “Do you remember the first question I asked you?” She replied, “Well, yes, you asked me, ‘How are things in Russia?’”

She didn’t remember the other questions, so I said, “Do you remember I asked you, ‘How was your flight?’” She agreed. I said to her, “What did I mean by those questions?” There was a silence, which I ended by saying, “You can’t possibly know what I meant by those questions. They are too vague.”

Then I handed her a piece of paper that had the question, “How are things in Russia?” printed on it. That shocked her, since none of us expects to see our conversations in print. None of us thinks about having our conversations picked apart.

Then we talked about the question. The first problem is context. Since when? Compared to what? What part of Russia? It’s a big country. So I handed her another page with those issues printed out.

The second issue with that question is the nature of what I’m asking: What am I asking about? What category? Am I asking about the weather? Politics? The economy? The traffic? The museums? I handed her a piece of paper with those categories on it.

Third, what is the simple and most direct answer? How’s the weather? Good. How’s the politics? Busy. How’s the economy? Good. How’s the traffic? Busy. How’s the museum? Good. How’s your work? Busy. How’s the family? Good. All that was written on the next page.

Really, even those categories are too broad. Pick a category: weather. What is a question that you can answer about the weather in a question-and-answer environment? What is the temperature in Moscow today? The question is understandable, it passes muster under the rules, and the answer is one either you know or you don’t know: “I don’t know; I wasn’t in Moscow today. I can tell you what the temperature was in Moscow three days ago,” or just, “I don’t know the temperature today.”

“When did it rain last?” “How hot has it been?” “Have you heard a forecast for this weekend?” Those are questions that are clear and simple enough to answer, and I handed her a piece of paper with those questions. They’re several levels of analysis down from the question you can’t answer, “How are things in Russia?”

I went on to discuss the other question I asked, “How was your flight?” What did I mean by that? I went through a similar series of pages. What context am I talking about? What flight? There was no nonstop from Moscow to where she was traveling. Which flight am I talking about? Even if you know which flight I’m talking about, what category am I asking about? The length of the flight? The turbulence? The book? The food? The delay? The service? What am I talking about? You don’t know, and a witness needs to know.

Even if a witness can figure out the category, a simple, direct response is all that is required. The length of the flight was long, the turbulence was OK, the book was long, the food was OK, the delay was long, the service was OK. Done.

Even if a witness picks a subcategory, it needs to be narrowed down to specific questions that more easily can be answered. Pick food: Did they serve the duck? What kind of wine did they serve? Did they give out those hot towels?

Every witness needs to understand how far a leap it is from, “How was your flight?” to “Did they give out those hot towels?” A good witness needs to travel that distance and make sure that the questioner travels that distance also. The witness has the right and responsibility to insist on clear, fair, simple questions. But he must understand the differences enough to exercise that right, as no one else will do it.

That simple exercise made a dramatic impact on the witness, who went on to do an excellent and careful job in her testimony.

This method can be used in almost any context. “How are things at the office? The hospital? The facility?” Plan ahead to ask the question up front and have it picked apart in writing: step by step, page by page. The sense of getting “caught” like that is a memorable one and an important reminder that that is exactly what can happen to a witness, when every word is under oath, transcribed and picked apart.

The result can have a real impact as a dramatic demonstration to the witness of how and why so much of what is appropriate in a normal conversation is, in fact, inappropriate in the precise and artificial question-and-answer environment.

Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s newly published “Preparing Witnesses” (4th Edition, 2014). He can be contacted at [email protected].


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