By Dr. Ken Broda Bahm:
When preparing a witness, there can sometimes be a strong impulse to say, “Just answer the question.” That impulse comes from an appropriate desire to keep things simple, and to keep the witness from wandering or waffling. But it can be bad advice. The choice to just answer the question on face without devoting any consideration to opposing counsel’s goals or to the impressions created by a simple “Yes” leaves the witness susceptible to becoming overly compliant, and susceptible to being led. An empowered witness should aim to do a little more.
The question is how to prepare a witness to understand when it is necessary to do more than “Just answer the question.” I will explain one technique for that in this post. When the witness is sophisticated enough to understand and to react to opposing counsel’s goals, I will encourage the witness to see a question as having two parts: Part One is the language of the question, what is being directly asked (Products were sold before testing was complete, correct?), and Part Two is the implication that counsel seeks to emphasize through your answer (You let an unsafe product onto the market, didn’t you?). When the answer to each would be different, it helps to answer in a way that addresses both: When products went to market, testing was incomplete because the final stage, after extensive laboratory and panel testing, is to closely monitor early use of the product in the market.
The Technique: Answer Both the Question’s Language and Its Implications
One important consideration is that an assertive technique like this is not for every witness. Someone who is not good at understanding the purpose of a question, or is otherwise angry, unfocused, or distracted will not be able to do it well. So assess your witness.
But I have found that, particularly among professionals and other individuals who handle complex situations for a living, many can do it. Those witnesses will need to spend some time understanding the full message that the other side is trying to develop and convey. Then, they will need to practice listening carefully so that they understand the literal question being asked while also being sensitive to the broader purpose and implication of that question. Finally, they will need to take their time in providing an answer that addresses both the literal question being asked (because the questioner has a right to that response), as well as the implication (because you have a responsibility to clear that up).
Some Examples:
Just to illustrate the concept of responding to both the question’s language and its implications, let me share a few types of responses.
The Underlying Reason
Question: You signed this draft of the contract without reading it, correct?
Implication: You were careless (so you deserve whatever you get).
Answer (addressing both): Yes, and I had closely reviewed prior drafts and could see that the track changes were minimal, so there was no need to read the full document again.
The Overarching Consistency
Question: But that isn’t what you said in your deposition, is it?
Implication: You were lying then, or you’re lying now.
Answer (addressing both): No, my deposition answer was based on the information available at the time, and so is my answer today. Now, there is more information available. I am always going to evaluate the facts as I have them.
The Complete List
Question: So you saw the patient, checked the vital signs, and then sent your PA in, correct?
Implication: …and that is all you did.
Answer: I saw the patient, I made a visual examination, checked her vital signs, asked her about her symptoms and current medications, entered a preliminary diagnosis in the charts, and then I sent my assistant in.
There will be many other instances as well. It is safe to assume that most of the challenging questions that an adverse counsel asks will have these two layers of literal meaning and intended implication. When your witness has the ability, the understanding, and the practice to do it, the habit of responding to both layers will make for much stronger testimony across the board.
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Other Posts on Witness Empowerment:
- Train Your Witness to Combat Simplistic Equivalence
- Empower Your Witness: A Review of “Reinventing Witness Preparation”
- Trust Your Witness
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