By Dr. Ken Broda Bahm:
Q: At the time you signed the contract, did you believe that all of your business partners had the capacity to comply with its terms?
A: Well, here is what was going on when I signed the contract: The business was growing massively, and our capacity was increasing by the day. That created some predictable stress, but it also led to a lot of progress. So here are some of the main reasons why we signed…
Based on that example, experienced attorneys can easily recognize a witness drifting from the question, and going down a rabbit hole of unsolicited detail. What we may not appreciate, however, is that to the witness, it probably feels natural. After all, the witness is still on the topic invoked by the questions — the conditions at the time of signing. The problem is that the witness is not directly and narrowly answering the question itself: The capacity to comply. Instead, the witness is treating the question as a topic. The witness feels like they’re being responsive, but in all likelihood, they’re opening doors to further questions, while at the same time guaranteeing that the original question will be asked again. Part of the preparation process should involve drawing the distinction and practicing it: A question is a question, not a topic.
The Problem: Conversational Drift
I believe that this common disconnect in treating a question as though it were a topic comes from a habit we all develop in conversation: Broadening a question past its original parameters, and adding information that seems relevant to the original request, even if it is not directly responsive to that request. If someone asks whether you did anything last night, it is natural to talk about what you did, and to add anything else that comes up during that recollection. The habit may make for better conversational flow and better stories, but in testimony it just leads to a greater risk of unearned disclosure and potential conflict. Prepared witnesses should understand that the act of answering is going to activate some thoughts and memories, but not all of those thoughts and memories will matter in answering the specific question. In addition, witnesses should learn that a natural desire to be “helpful,” or to flesh out a subject, is not a license to stray beyond the question they’re answering.
The Solution: Keep the Question Front and Center
Witnesses should still give a full answer, and should still answer in their own words. If a limited answer would leave an unfavorable implication, then address that as well. But don’t otherwise open up the question to being treated like a topic. I will sometimes encourage jurors to visualize a question as a fence: Inside that fence, you can be complete, and strategic, and most of all, honest; but don’t step over that fence.
If witnesses are having trouble keeping their answers focused on just the question and not the topic, then one technique I will sometimes use is to have the witness rephrase the question in their own words before answering. Obviously, they shouldn’t do that in actual testimony, but as a practice aid, it can help them to focus on what is being asked. To draw a distinction during practice, I have asked the witness to pick up pencil when they are rephrasing, and then to put the pencil down when they’re giving the answer they would give on the record. And a final important bit of advice is that if they’re ever in doubt about whether they are still answering the question or not, then stop.
The goal isn’t to be too guarded or reticent in responding. Instead, the goal is to keep your attention on the question that is being asked, and not on the more general topic of what is being asked about. Ultimately, it helps all sides to be clear and step-by-step in the examination. So, for both cross and direct-examination, witnesses need both understanding and practice on policing their own focus so they’re answering questions, not speaking on topics.
___
______
Other Posts on Witness Response Techniques:
- Bottom Line Your Deposition Advice: Four Rules
- Prepare Your Witness Virtually: Seven Best Practices
- Witnesses, Return to Your ‘Home Base’ Where Possible