September 17, 2019

Podcast - Rule 1: Witness, Take Your Time

Powerful Witness Prep Podcast Series

In this episode of his "Powerful Witness Preparation" podcast series, litigation attorney Dan Small begins an in-depth, 10-part dive into the rules for witness preparation. The first rule — witnesses must take their time — underscores the importance of taking control as a witness. He briefly discusses how multitasking and fairness factor into this process before talking about the three primary concerns he hears from witnesses when he tells them to take their time.

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Dan Small: If the old saying is true that he who writes the rules wins the game, then the first rule for any witness is to take your time. This is the rule from which all else flows. Follow this, and the rest will be much easier. There are no shortcuts for a witness. The faster you try to go, the longer it will take. The harder you try to move things along and be helpful, the harder it will be. It's all about multitasking and fairness.

Let's start with multitasking. No witness can do everything they need to do to be effective and do it quickly. Make sure you've heard the question clearly and understand it fully. Consider it carefully. Formulate a clear and thoughtful answer, and then state it slowly and succinctly. It's too much multitasking for your brain to process while sitting in the witness chair trying to quickly respond. This is not an environment in which you can think out loud, as we all do all the time in our normal lives. Instead, you have to carefully think through each step. Formulating a clear response can only be done if you take your time.

What about fairness? Question, answer, question, answer, like a volley in tennis. The faster it goes, the sooner someone will make a mistake. But in tennis, that's fair. Whoever makes the first mistake loses the point. In testimony, one of the players is invincible. If the questioner makes the first mistake, it doesn't matter — he or she is not under oath. If the witness makes a mistake, it lives forever. It's the gift that keeps on giving, under oath and duly recorded. What could be more grotesquely unfair? The first way to lessen that unfairness is to slow this thing down. The slower, the fairer.

Every witness has the opportunity, the right and the responsibility to control the pace of their testimony. No one else in the room is interested in slowing it down. If the witness doesn't do it, it won't happen.

When I tell witnesses to slow down, I often get three reactions. First, "It's hard to do." Second, "It will look bad." And third, "It will make my testimony take longer." Let's look at all three concerns.

Concern 1: "It's hard to do."

First, "It's hard to do." Yes, it is hard to do. Normal conversation is fast-paced and free flowing. We interrupt each other, finish each other's sentences, go where we think others want to go, all to make it fun and interesting. And all that is inappropriate and dangerous when it's under oath, transcribed and picked apart like a witness testimony. Slowing down is uncomfortable and natural. How can you do something that unnatural, naturally? You can't. To do it right, we have to do it mechanically. Right from the first question, pause and silently count to five after every question before answering. Don't wait until the middle of the testimony to do this. It will be much harder, and you'll forget. Remember, it's your oath and your testimony: You should control the pace, whether that makes someone else happy or not. The written record looks the same whether you take a minute or a second to formulate your answer. But your answer will be much better for the extra thought and the extra time. Counting to five after every question will help you in several ways.

  • It will keep you from feeling rushed. People in a hurry make mistakes. Lawyers know that, and some may try to push you to go faster just for that reason. If anyone questions your taking time, you can very positively respond that you're just trying hard to tell the truth.
  • It will give you time to listen with the intensity and thought required to make sure you really understand the question. Among other things, it forces you to listen to the entire question. Too often in a conversation, we think we know where the conversation is headed, so we start our answer or we stop listening before the other person has even finished the question. As a witness, this is confusing and even dangerous. The last words of the question may not be what you expected. Thus, you may be giving the wrong answer to the wrong question, while at the same time answering a question that was not even asked.
  • It allows you to be careful and disciplined enough to think about the best, most truthful and most precise answer. Often the first thing that pops into your head is the last thing you want to have pop out of your mouth. The curse of the intelligent witness is that many people are used to thinking they know where the conversation is going and being in too much of a hurry to help it get there.
  • Lastly, it will give your lawyer time to speak or object if appropriate. There is an objection. Stop, listen, think about what's being said and wait until you're advised to continue.

Concern 2: "It will look bad."

All right, so how do you address the second concern, "It will look bad?" People sometimes worry that if they take their time, this will make a bad impression on the judge or the jury. In my many years as a litigator, I've had many opposing lawyers complain that my witnesses were going too slow, but I have never heard that from a juror or from a judge. Everyone else in the courtroom or a hearing room understands how important testimony is and that it requires a witness to take their time, as long as taking your time is done consistently from the very first question, done reasonably and done for the right reasons. Then the witness should not worry about creating a bad impression. Several years ago, I represented a contractor who was called to testify before a federal grand jury investigating a developer for fraudulent practices. When I met with him to prepare, it was clear that this rule was particularly important because he liked to talk and he talked too fast for a good witness. With preparation, he finally understood the significance of taking his time before responding. He went into the grand jury room, and since the lawyer for the witness is not allowed in a federal grand jury, I had to wait outside. I didn't really know how successful he was going to be. Some time later, I was able to see a transcript of his testimony. And to my pleasant surprise, it was clear that he was going slowly and deliberately. It read like a transcript should, full questions without interruption and clear and careful answers. You could also sense the growing frustration of the questioner who wasn't getting the snappy, sloppy, helpful answers that he wanted out of his witness. About an hour and a half into this three-hour testimony, the questioner said on the record with obvious frustration, "Mr. Witness, I've noticed that you're pausing after each question. Is there a reason why you're doing that?" My witness responded after a pause, "Because this is the most important thing I've ever done. And I want to give you the most accurate answer that I possibly can." That was the end of that. All non-lawyers in a courtroom understand how important this is to the witness. Take your time.

Concern 3: "It will make it take longer."

Lastly, let's address the misperception that "It will make it take longer." The first response is, "So what?" This is important. If it takes a little longer to do it properly, that's time well spent. The second response, though, is equally important. As in so many other ways, being a witness is unnatural and counterintuitive. In many situations, the reality is that the slower the witness goes, the sooner his or her deposition or other testimony will be over. Why? Lots of reasons, but most often it's because a questioning lawyer really is not seeking deliberate and carefully considered answers. They're fishing for the quick hit, the sound bite, the sloppy answer, the mistake. Once they realize they're facing a careful, disciplined witness, they lose interest. Time is money. There may be more productive places to fish. Or maybe they just start thinking of the pile of papers needing their attention back in the office. I've seen it happen time and again. The slower you go, the shorter your deposition will be. Slow down, take your time. Taking control as a witness does not necessarily mean anything adversarial or unpleasant. On the contrary, you don't want to get into a fight. You will generally want to avoid being too biased or one-sided. What it does mean is understanding that your role as a witness requires taking the time to make sure that you do it right, whether or not that results in a pace that someone else considers "too slow." The first step towards taking control of your testimony is to take control of the pace. Slow this thing down. Take your time.

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