By Dr. Ken Broda Bahm:
In the game of chess, the difference between a novice player and an experienced player can be boiled down to two words: thinking ahead. The experienced player doesn’t just move their piece’s toward the opposing king. The experienced player tests each possible move and anticipates what the other player will do in response to that move. Witness testimony, of course, isn’t a chess game: The goal is to effectively and efficiently tell the truth, and not to match wits with the other side. But on that one feature, there is a parallel: The effective witness also thinks about the attorney and anticipates the likely response.
A prepared witness has been trained to use various techniques to get the truth across effectively. And when they’re fully prepared, they’ll have good answers. But those answers aren’t just being delivered in a vacuum. To the lawyer on the other side, it will soon become obvious that the witness has been prepared. So the lawyer reacts and adapts. Specifically how the lawyer adapts will depend on the technique, the situation, and the lawyer. But if you want a witness who will not just give a good answer on the first try, but will also persist with that answer in the face of the adverse attorney’s reactions, then it helps to teach your witness about the most likely moves from the other side, and that second level of response.
Anticipating the reaction of the attorney on the other side is important in a number of different scenarios. Here are a few.
When Your Witness Has Prepared
It is common for a witness to meet in advance with their team in order to prepare for their testimony. That team always includes their attorney, and often includes other counsel and staff, as well as a consultant. Opposing counsel might act like this is a big deal, or trick the witness into thinking it is a big deal. The best response to the question is to unapologetically acknowledge what opposing counsel has a right to know, but to not go beyond that. In most arenas, that means noting that you met to prepare, but not going any further:
Question: What did you do to prepare for this testimony?
Answer: I met with my legal team.
In a worst-case scenario, if you were asked why or pressed to say anything more about the meeting, and if it is proper to answer, it is best to stick to general terms:
Of course, I wanted to be prepared so my testimony would be as clear as possible for this jury.
When Your Witness Is Using Her Own Words
Taking testimony from the other side is all about control, so that is what opposing counsel wants. For that reason, they’ll often favor leading questions that just present an apparent “yes or no” option. If a witness is prepared, however, then usually they are wanting to offer more than just yes or no. They will want to answer in a complete sentence which, beyond just confirming or denying the adversary’s construction, briefly frames the response in ways that are more complete and favorable to the witness’s own side.
The first time a witness does this, it is likely to result in a condescending rebuke:
Now, Mr. Smith. Our time is limited here, and this is my only chance to ask my questions. Later, you’ll have an opportunity to say whatever you want to say to your own lawyer. But for now, just listen carefully and tell me whether the answer is simply ‘Yes’ or ‘No.’
A prepared witness will know that this rebuke is coming. They’ll know that the experienced lawyer on the other side will try to make them feel that they’re doing it wrong. And that probably means they’re doing it right. So a prepared witness will keep doing it, by politely and briefly answering in their own words.
When Your Witness Has a Solid Answer
The goal of anticipation applies, of course, not just to the testimony process, but to the content as well. A witness’s general themes and talking points, as well as their specific substantive answers, will also face a reaction of some kind from counsel. The preparation session should focus in part on what that response is likely to be.
A product designer on the defense side of a liability case, for example, will say that they designed around specific dangers and tested to a high level. Then the plaintiff’s attorney will predictably respond, “But the injury happened anyway, didn’t it?” That is the cue for the witness to come back with something like, “That is right. Unfortunately, given the nearly infinite combination of users and circumstances, it is impossible to make a product that is perfectly harmless in all situations. We focus on making it as safe as we practically can.”
Or a physician talking about what she did for her patient might rely on pattern and practice: “My practice is to conduct a physical examination every time.” The attorney will come back with, “But that isn’t in your records, is it?” or “But you don’t specifically recall whether you conducted it in this case, do you?” Even if those points are true, the witness who simply concedes that with a “No, it isn’t” or a “No, I didn’t,” is giving the adversary what he wants and ending on a weak point. The better response: “Correct, but I don’t need to recall it or see it recorded to know it happened, because it is my standard practice: I do that every time.”
Those are a few examples, but the approach of thinking down the road applies to all critical points during the deposition or trial testimony. For that reason, anticipation should be an important dimension of witness preparation.
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Other Posts on Preparing Witnesses:
- Treat Cross-Examination Questions as a Flashlight in a Dark Room
- Be the Director of Your Witness’s Direct Examination
- Overlearn Your Deposition