October 15, 2019

Podcast - Rule 3: Tell the Truth

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, litigation attorney Dan Small continues his 10-part series on the rules for witness preparation. In "Tell the Truth," he analyzes the oath taken by every witness: to tell the truth, the whole truth and nothing but the truth. He breaks down each of these three components, explaining common pitfalls and offering tips for counteracting them.

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Podcast Transcript

Dan Small: No witness takes an oath simply to tell the truth. That's a myth. The oath at the beginning of testimony is to tell the truth, the whole truth and nothing but the truth. Like many things in our normal lives, we tend to blur it all together into one image. But like many things in the precise and artificial world of being a witness, we need to examine the entire statement and make sure that we understand and consider all three parts. There are, after all, three parts to the oath for good reasons.

Part 1: The Truth

Number one, the truth. Witnesses should understand that this is not only a rule of law, it's a rule of self-preservation. Lying or stretching the truth as a witness may not only be a crime, it's foolish. Assume that the questioner is more experienced than you think and that his or her experience includes the ability to make a witness who is playing fast and loose with the truth very uncomfortable. If a questioner suspects that you're not being honest, he or she can take a variety of approaches to try and catch you in a lie. The consequences of telling a lie are often far worse than whatever it was the questioner was asking about in the first place. It's what we used to call the Watergate Syndrome, maybe the Martha Stewart Syndrome. People are getting caught and prosecuted for covering up, not for the initial subject matter being investigated. Don't do it, tell the truth.

First is, "Oh, what the heck?" As the questioning drags on and you're asked about the same things over and over, as the questioner makes clear that he or she doesn't like or doesn't believe your version, there is a natural and understandable tendency to say, "Oh, what the heck?" and give them a little more of what they seem to want. After all, maybe the question's only slightly wrong. Maybe someone else would see it that way, and maybe if you give them what they want, they will finally move on to something else. Unfortunately, all three of these maybes are misguided and dangerous for a witness. First, when you're under oath and every word will be taken down and picked apart, there's no such thing as slightly wrong. If something is not completely and precisely true, don't say it, it will only cause you more problems. Second, it doesn't matter what someone else's view of the matter might be or whether that person's view is or isn't reasonable. That mysterious other person is not the witness. You are. Finally, if you give them what they want, they will not go away, they will only want more. There are no shortcuts here.

What is true in mathematics is equally true in this process: The shortest distance between two points is a straight line. The truth is a narrow, precise line.

No matter how hard someone tries to get you to veer off that line, resist the "Oh, what the heck?" tendency. Once you're off track, it becomes harder and harder to get back on. No matter how many times a question is asked, and in however many different ways, the truth and your truthful answer must remain the same.

Making Mistakes: Stop Digging and Don't Worry

Mistakes. Everyone accepts the old maxim, "nobody's perfect." Yet, in a witness environment, people tend to forget. The setting, the oath, the court reporter all combine to make them feel they can't make a mistake. They feel like someone is grading them and any mistake will hurt their grade. So when they inevitably make a mistake, they panic and either ignore it or try to mold and shape it like clay into something else. Don't do it. When you make a mistake — which every witness does at some point — keep two things in mind. First, remember the law of holes: When you're in a hole, stop digging. Trying to work around a mistake will ultimately only make it worse. As soon as you realize you made a mistake, however that happens — on your own, because you hear it come back at you in another question or whatever — just stop and fix it. There are lots of ways to do this, but one of the easiest and most effective is a simple word, "clarify." The goal is a clear and accurate record, so stop and clarify any mistakes. Clarify something you remembered wrong. Clarify something you were confused about. Clarify a poor choice of words. Clarify an incomplete or distorted answer. Second, don't worry about it. This is not school, you're not being graded, and you should not expect to be perfect. More important, juror number six doesn't expect it either. He's nervous, too. He knows he would make mistakes, and he doesn't want robots talking to him. Your mistake draws you closer to him, not further away. If you make an honest mistake and honestly try to clarify it, any attempt by the questioner to cut you off or make much ado about nothing should reflect badly on the questioner, not on the witness. My favorite quote about mistakes is by Elbert Hubbard, author of The Notebook: "The greatest mistake you can make in life is to be continually fearing you will make one." It can be critical to a witness' success that the preparation process takes away some of that fear of making mistakes.

Part 2: The Whole Truth

Second, the whole truth. The whole truth means both the good stuff and the bad stuff. Both need to come out, and in many situations, the witness must take the lead in bringing them forward.

The Bad

First the bad stuff. None of us is perfect, and most of us have things in our past that are embarrassing or difficult. As a witness, some of those things may become relevant or the questioner will try to make them relevant. The key is to avoid making the situation worse by trying to hide or be defensive about these things. As prosecutors, we use the acronym B.O.B.S: Bring out the bad stuff. Whatever the issues are, you and your lawyer can deal with them. It will be much harder if they only come out after you've tried to cover up or gloss over the problems. Be open and honest with your lawyer beforehand, and be prepared to bring out the bad stuff directly and openly. This will take away from the questioner the opportunity to make you look bad and the problems look worse by having to drag it out of you. No matter what the problem is, no matter how large or small, it's always better to talk about it and prepare for it beforehand and bring it out willingly in testimony. Don't give the questioner a gift he doesn't deserve by adding the claim that you tried to cover it up.

Be yourself. Too often, witnesses try to pretend there's someone different than their true selves. The reality is that questioners, judges and juries are often pretty good at spotting a phony. Once they think they've found one, that witness' credibility goes out the window. All of us are uneven, we are better at some things than others. The problem is that we don't like to accept that, yet they're all part of the truth of who we are. I defended a doctor who was charged with criminal tax evasion, having failed to report and pay taxes on a large amount of money over a three-year period. There was no question that our tax returns were wrong. Our defense was, "It was not intentional." As a professional, my client was extraordinarily intelligent, qualified and articulate. She had testified in many cases as an expert witness. Unfortunately, as talented as she was in her work, she was equally untalented in her personal life. Her finances and recordkeeping were a terrible mess, and she was justifiably embarrassed. In her defense we had to show that part of her life to be the disaster it truly was, and to do that we needed her to testify. A life of being the competent, confident expert made what would have been difficult for anyone sheer torture for her. She wanted to explain the mess, justify it, minimize it, blame others for it, anything not to look that bad in public. It took a long time to convince her that all of that was phony, not who she really was. If the gap between what she did well and what she did badly was unusually large, that just made her task as a witness more difficult, but not one that she could avoid. In the end she understood. She testified about how disorganized her finances have been and it's been a chronic problem and a constant source of embarrassment. Outside factors may have made things worse, but only because she was in such bad shape to begin with and didn't change. It was difficult, but it was honest. After she was acquitted, the judge gave her a strong lecture on her need to get a good bookkeeper. Everybody agreed. In many ways, large and small, telling the truth means being yourself. That does not mean that you shouldn't work hard in preparation to be careful and precise in expressing yourself. It just means that you cannot be a precise phony.

The Good

The good stuff. Just as a witness must take responsibility for bringing out the bad stuff, they must also bring out the good stuff about themselves, their work, those involved in the litigation or other matters. The questioner will not ask. It must come from the witness. For example, I worked with a wide range of healthcare professionals. They get up in the morning, get dressed and have some breakfast, go to work and then spend the day saving lives or helping those in need. After a while, to them, it's just what they do every day, nothing special to talk about. But to juror number six, it's amazing, wonderful work, if it's truthfully described, that can only come from the witness. Every witness in every profession, in all walks of life, has good stuff to talk about. An important goal of preparation is to find it and convince the witness for that this one day, it's not vanity to talk about it, it's an essential part of telling the whole truth. In a deposition, if the witness does not bring out the good stuff and the best parts of your case, during the other side's questioning, counsel can and should consider doing a direct of your own at the end. That creates good material that can be used at various points down the road. Even at trial, if the other side designates portions of the deposition to read or show to the jury, many jurisdictions will allow counsel to cross designate the good stuff from direct.

Part 3: Nothing But the Truth

Third and lastly, nothing but the truth. In this environment, truth has a different and more precise meaning than it does in a normal conversation. Truth in a conversation is what you believe. If I believe that something is true, I'm not lying by talking about it, but belief includes guesses and inferences and all kinds of other things that stretch a precise definition of the truth. Truth in the witness environment is strictly limited to what the witness saw, heard or did. Anything beyond that is speculation.

If you try to have a normal conversation in which all you say is what you saw, heard or did, it'll be almost impossible. This is not the type of interaction that we pride ourselves on, but this is the truth and the precise and narrow sense that is used here. Thus, a witness can testify to something that they saw, they witnessed it, they read it, whatever. They heard someone say it, they did it, they wrote it, they said it, they took some action. Everything else is a guess. So much of what makes us intelligent, interesting, intuitive people, and so much of what makes us good conversationalists, is based on our view of what's in someone else's head. Why did someone do something? What did they mean when they said that? How did they react to something? It's all guessing. We do it every day in normal conversation, and we take pride in it. Don't do it as a witness. The truth, the whole truth and nothing but the truth. It's hard work, but it's essential to being a good witness.

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