September 3, 2019

Podcast: Basic Principles for Being a Witness

Powerful Witness Prep Podcast Series

In the sixth episode of his "Powerful Witness Preparation" podcast series, "Basic Principles for Being a Witness," litigation attorney Dan Small describes the two fundamental principles of being a good witness and explains how to carry them out effectively. Although concepts like "Listen, listen, listen" and "Don't try too hard" may sound easy, knowing how to apply them requires a level of understanding and discipline that can only come through careful preparation.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: Where do we begin to help a normal person enter this unnatural world of being a witness? There are two basic principles for being a witness. Both seem obvious and simple, but both are actually quite complex and difficult. To present them as concepts is easy, to carry them out effectively as a witness requires a high level of understanding and discipline that can only come through careful preparation.

Principle 1: Listen, Listen, Listen

It's often been said that the three most important rules for being a witness are listen, listen and listen. That is where the process begins, and it is the foundation for everything else. It's what we often think we do best when it's actually an area where we fall short. What most people worry about when they find out they're going to be a witness is talking: What will I say? How will I say it? Yet most people are able to say what's on their mind. They do it every day in conversation. And while they need to be prepared for how to say it in this new environment, the basic ability to speak is still there. What most people do not do in their normal lives is listen with a kind of narrow intensity and precision required of a witness. There are three basic reasons for the difference.

As a witness, every word is, number one, taken down, number two, given great significance and perhaps under oath, and number three, intensely scrutinized.

Thus, you must treat every word with the same extraordinary care, no matter who says it. In a normal conversation, if you don't listen carefully, it rarely matters. Conversation will keep going, even if it goes a little off track or becomes confusing. However, when every word has significance, what is asked becomes part of the record. The words of the question become your witness' words, unless he or she says something to prevent it. The witness must listen carefully. Part of the problem is that good listening, in this context, means focusing intensely and solely on the words that are spoken by the questioner. This is contrary to what we're used to. In normal terms, a good listener is someone who understands what the other person means to say or wants to say, not just the actual words spoken. A good conversationalist knows that the other person really means to ask what time it is, not just, "Do you know what time it is?" A witness must focus on the actual words in the same way that a transcript focuses only on the actual words. This is surprisingly hard to do with the necessary level of intensity and clarity. The best way to achieve this kind of focus is to treat each question as if it were both the first and the last one asked. What do we mean by that?

Number one, treat each question as if it were the first one. In a normal conversation, if you say something once, you assume that the other person will put whatever else you say later in that context. A witness doesn't have that luxury. Each question and answer will be examined and picked apart in isolation. This out of context scrutiny has two key results. First, you have to put the prior questions out of your mind and listen only to the question on hand. Don't blend this question together with previous ones. Second, if there are facts or explanations that are essential to this answer that you've already been asked, either clearly refer back to your previous testimony or restate the facts. It's not unusual in testimony to have repetition, and it is clearly not the fault of the witness. However, many times a questioner chooses to bring up a subject, the answer remains the same. If the questions are repetitious — and they often are — then the answers must be repetitious.

Number two, treat each question as if it were the last one. Too often witnesses get caught up in guessing or trying to anticipate where the questioner is going. And as a result, they don't listen carefully enough to what is actually being asked now. Consequently, the witness provides an answer that's not responsive to the question and, perhaps more troubling, an answer that opens up a line of questioning the examiner may not have been planning to ask. Every good trial lawyer or investigator can tell stories about witnesses who were so intent on anticipating where they were going that they unknowingly pointed the questioner down a whole new and helpful path that they didn't even know about. Remember also that all of the words of a question count. In this precise and artificial world, if you ignore introductory or leading words of a question, you do so at your peril. For example, question: "Isn't it true that after you found you were out of butter, then you went to the store?" Answer: "Yes." You may have focused on the key part of the question, "You went to the store." However, you have also adopted the questioner's assumption that you were out of butter and, by inference, that that's why you went to the store. If all these assumptions are not completely correct, don't answer the question. This is your statement, Mr. Witness, Madam Witness. These are your words, you should be in control. This includes controlling the pace, the tone and the complexity of the questions. It includes, where necessary, questioning or challenging the questioner in pursuit of clear and fair questions. The first big step towards fairness is to listen with extraordinary intensity. You have the right to do what it takes to achieve that end. The 10 rules we'll talk about later in this series are mechanical aids to help accomplish this.

Principle 2: Don't Try Too Hard

The second principle sounds even simpler, but it is actually even harder to do. Don't try too hard. Most witnesses run into problems not because they're trying to lie, but rather because they're trying too hard to tell the truth. They need to just focus on answering the exact question that was asked. Much of what we do or say to keep a normal conversation going has to be avoided. In friendly conversation, to avoid looking rude or foolish or uninformed, or just to keep the conversation flowing, we often embellish or shade our knowledge or understanding in perfectly innocent and acceptable ways. We guess, we assume, we hide our lack of memory or knowledge. We gossip, we talk too much, and we speak without thinking carefully. Changing these conversational habits is hard work, but it's essential for successful testimony. It takes a surprising amount of preparation, concentration and internal discipline. The greatest challenge of being a witness is not making clear what you know, but rather making clear what you don't know. This is contrary to what we're used to in our everyday lives.

The essence of being a good conversationalist is made up of two parts. First, to help the other person move the conversation along in interesting directions, and second, to be personable or impressive. A witness' goal is not to help anyone else do anything, it is only to be a truthful and efficient witness. Rather than moving anything forward, the goal is to be careful and precise and then go home. To insist upon simple questions, give simple answers and then stop. This means that your words should be limited.

In general, as a witness, you should only talk about what you absolutely remember, about what you saw or heard or did. Anything more is going beyond what you truly know to be the truth, and it's trying too hard.

Think of any case, investigation or dispute, as a jigsaw puzzle. In one way or another, the questioner is trying to put the pieces together. He or she either wants to see what the overall picture on the top looks like or too often wants to fit his or her biased view of what it should look like. Meanwhile, inside that puzzle box is one small, strange-shaped piece that represents one witness' memory of what they saw, heard or did on the matter. For a witness, the overall picture doesn't matter. The witness' job is to define the limits of their piece and to make clear this far and no further, to make clear and keep clear the precise size and shape of their little piece. Failing to keep the lines clear or trying too hard can create conflicts with other witnesses or other evidence. Questioners love to keep issues bubbling by creating conflicts, whether they're significant or not. This creates a natural tension in every case between questioner and witness. The questioner will always want your piece of the puzzle to be larger, more flexible and more consistent with their view of the overall picture. They'll want you to know more, to say more, and to say it differently so they can solve the puzzle their way and do it with fewer pieces. Your job is to resist this natural tension and keep the lines clear between what you do and do not know. This is a search for truth, not emotion. Be factual, and not trying too hard will make things easier down the road. The natural tendency to want to charm and to please whoever is asking the questions ignores the fact that the other side will almost always have a chance to pick apart your answers. When that happens, your attempts at being helpful will be attacked as untruthful exaggerations. Don't fall into that trap, don't try too hard. Just as being a witness is not a test of your charm, it's also not a test of your intelligence. You will not be graded on how much you know, only on how accurate what you say is. You don't have to study the facts unless your lawyer asks you to. You should never feel uncomfortable or defensive about what you don't know or what you don't remember, as long as the words you speak are precise and accurate. Take a minute to understand just how hard this is to do. Think about how much pride we take in our intelligence and personality. What better place to demonstrate these qualities than an important conversation like this with important people listening. Doing anything else is awkward and uncomfortable because it's not natural. The more intelligent and outgoing the witness is by nature, the more inclined he or she will be to want to show off those qualities. The 10 rules set out in the following series of podcasts should help establish this discipline.

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