July 23, 2019

Podcast: The Gaps in Witness Expectations

Powerful Witness Prep Podcast Series

In the third episode of his "Powerful Witness Preparation" podcast series, litigation attorney Dan Small covers how to fill in the gaps during witness preparation and how to help witnesses overcome three major hurdles they face when preparing to take the stand. He explains the importance of addressing these gaps so that witnesses can perform their job effectively in the litigation environment.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: "Why is this so difficult?" It's a question that many witnesses have asked us. The answer is because there are surprising and enormous gaps between the witnesses' real-world experiences and expectations and those in this very strange and unnatural world of being a witness. The reasons are easily stated, but their impact is profound. Number one, it's under oath, number two, everything is transcribed, and number three, everything will be picked apart. Each of these extraordinary facts are far beyond a normal person's experience. Put together, they form the basis for a series of critical gaps. I call these gaps the perception gap, the audience gap and the conversation gap. To prepare a witness, a lawyer must help the witness and themselves to define, understand and bridge each gap. Let's take them one at a time.

The Perception Gap

There is, for a surprising and disturbing percentage of witnesses, an extraordinary perception gap between what the lawyer assumes he or she is asking from the witness and what the witness assumes the lawyer wants from them. One small example: As part of my work with witnesses, I frequently get called in by clients around the country to prepare executives or others for depositions or other witness situations, often working with existing trial, corporate or personal counsel. One time several years ago, I walked into the conference room where counsel and the witness were waiting for me and started to introduce myself to the witness. She interrupted me and said, "I know who you are. You're the guy who's come to tell us what to say." I responded, "If that's your understanding, then that guy is leaving." And I walked out the door. I waited outside for about five minutes, and then I turned and introduced myself as the guy who's come to help you to tell the truth. Where does this guy come from? Most lawyers think of themselves as ethical professionals, there to give advice and help guide the witness through this process. We're there to have an open and honest dialogue to help the witness understand and tell the truth. However, the sad reality is that's not how most witnesses develop their perceptions of lawyers. Most witnesses develop their perceptions in very different contexts. On TV, where unethical and devious lawyers get the best ratings. On the internet, where stories of outrageous conduct by lawyers abound. And from friends and family, where tales of sleazy lawyers are far more interesting to tell — and thus far more frequently repeated — than tales of ordinary professionals acting appropriately. So it should come as no surprise that so many witnesses assume the lawyers are there not to get at the truth, but rather to tell them what to say, to make them toe the line, to make sure everyone is singing from the same song sheet or just to tell whatever story is most likely to help them win. You can bridge that gap.

There's an old story from the late, great speaker of the House, Tip O'Neill, in his first congressional election. He campaigned all over his hometown and worked very hard. But he found out that his next door neighbor, an elderly woman, had told people she was not going to vote for him. He went to her house and he said, "Mrs. Finley, you've known me all my life. I shoveled your driveway. I mowed your lawn. I delivered your paper beginning when I was 10 years old. Why aren't you going to vote for me?" "Tommy," she answered, "you never asked me." Don't make that mistake.

Ask your witness for the truth, not as an offhand comment or an assumption. Ask for the truth early, clearly, humbly, passionately and most important, repeatedly.

You can't effectively represent your client as a witness if he or she is not fully candid and forthcoming. As a person, you must understand that you're asking someone to say things and admit things that they may not have admitted before, sometimes even to themselves. This can be a long, hard process that must be handled with patience and feeling. Lawyer and witnesses must work together to close the perception gap.

The Audience Gap

From a very young age, we learn and we enjoy being social. We treasure invitations to join others. Your spouse or relative invites you for a meal. Your friend invites you for a drink. Your coworker invites you for a meeting. We respond and come to the table to interact with those at the table. Maybe they'll agree with us, maybe they won't, but we know they'll listen. We know who we are talking to. Our audience is clear right there in front of us. Our mission is to communicate with them, to understand them and to help them to understand us. But what if the table we're invited to is the witness table, a deposition, a hearing or whatever? The most common and fundamental mistake many witnesses make is not understanding who the real audience is and that the person asking the questions is usually not the real audience. What a bizarre gap for a normal, sociable person. The person you're talking to is not the audience. Stranger still in a deposition or some other witness settings, you may be talking, through the court reporter, to the real audience that's not even in the room! Indeed, we may not even know yet who he or she is, some yet-to-be-determined judge or juror or arbitrator. Madam Witness, you are talking to a ghost. This audience gap is not the witness' fault. It's the lawyers fault for not understanding how profound this misunderstanding can be and for not making it clear in preparation. This gap is truly a wide one. It goes against all our upbringing, our socialization, our normal interactions. The idea that the person asking the questions may not be the person the answers are directed to — it's hard to say and even harder to understand and deal with.

But you can bridge this audience gap. Explain why the questioner is not the audience. They are often a paid advocate hired to win an unmovable from that position, no matter how personable and persuasive the witness may be. It's not a reflection on the witness; that's just the way things work. They've drunk the Kool-Aid. You're not going to persuade them of anything except possibly that you're a good witness. So who are they? What are they like? What's going to happen? Think about the different ways that people lawyers approach this gap. The friend, by pretending to be the witness' friend, to try and get the witness to tell them more, tell them what they want to hear or at least try to bend things their way. He's not your friend, don't lose focus. The interpreter, by trying to be helpful and putting the witness' testimony in their own words. "So what you're really saying is..." "Let me see if I can sum this up..." "Wouldn't you agree that..." This is your testimony, Madam Witness, not his. Don't let anyone put words in your mouth. The jerk, we've all met him or her, the infuriating person who offends you and goads you into an argument. But here the questioner knows that if the witness is busy arguing with him, they're forgetting about, and likely making a poor impression on, the real audience. Don't engage with the questioner. She is not the audience. The cynic, how frustrating it can be to be at the table with someone who just won't agree with you no matter what you say. That frustration can cause you to go overboard. But the questioner is not the audience. The witness is not going to change their mind, or at least they'll never admit it. If the witness reacts to them as a cynic in any of the normal ways, they know they've made it much harder for the witness to communicate with the real audience. Don't play their game.

The Conversation Gap

Regardless of the audience for our communication, we're used to and we pride ourselves on a form of communication that is informal and fun, conversation. Casual, interesting, free flowing, good conversation is an integral part of our day, our relationships and even our self-esteem. So your witness may think, "I'll just go talk to them." But in reality, you need to tell them to follow the speaking pattern of question, pause, answer, stop. Conversation is casual because the setting is informal. What if it was all under oath? Conversation is interesting because we can be open and creative. But what if every word was being transcribed? Conversation is free flowing because we feel free to say whatever we want. What if every word once transcribed would be picked apart and used against us or others in the future? Those three things — the oath, the transcription and the follow up — are the reasons this gap is so difficult. This is not a conversation. A witness is not there to entertain, just to tell nothing but the truth in a clear, simple way. A good conversation, we say, flows, and a good conversationalist is someone who helps it to flow. Good testimony, alas, does not flow. It's very awkward and stop and start. Question, pause, answer, stop, and then start all over again. A good listener as a witness is not someone who focuses on what the questioner meant or where they're going, but only on the words that came out of their mouth, the words that the court reporter heard.

Some time ago, I represented an international sales manager, a brilliant man who spoke several languages fluently. By the time he finished preparing for and giving his testimony, he volunteered to me that this was the hardest new language he had ever learned, not because of the words themselves but because of the unnatural and artificial discipline it requires. This is not a conversation, but you can bridge this gap. Several years ago, the TV series West Wing had a series of episodes about a scandal in the White House. The president had MS, and he and his advisers had hidden that from the American people. Now the news is broken, and an investigation has been launched into whether anyone broke the law by covering up this fact. President's press secretary, C.J., has been subpoenaed to testify and has been called to meet with the White House counsel to prepare for her testimony. C.J. is intelligent and talkative. She's clearly nervous and angry about the situation, both being called as a witness and having to meet with counsel. Unable to do much about her frustration, she takes it out on counsel by being sarcastic, uncooperative and not eager to take advice. Counsel is trying to make her understand the need to prepare. Then, in the middle of talking about what happened, he stops and there's roughly this exchange:

"C.J., do you know what time it is?"

"It's five past noon."

"I'd like you to get out of the habit of doing that."

"Doing what?"

"Answering more than was asked. Do you know what time it is?"

And after a long pause, she responds, "Yes."

If you teach your witness nothing else, teach them the answer to the question. Do you know what time it is? Is it an extreme example? Of course it is. That's why it works, because the answer is the difference between a conversation and testimony. In a conversation questions aren't really questions, they're prompts. There are means of moving the conversation in a particular direction. It's rare that anyone is really looking for the precise answer or will be offended if they don't get it. As a result, in a conversation, the answer, "yes" — the accurate answer to, "Do you know?" — is the bad one. That's not what the questioner meant, that's not where the conversation is flowing. In a testimony environment, though, the question is important, and "yes" is the right answer. "Do you know what time it is?" That is what the questioner asked. Answer, "Yes." That is the core difference between a normal conversation and a testimony environment. Help your witness to understand these gaps: what they are, where they come from and how we can bridge them to move forward and be a good witness.

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