October 29, 2019

Podcast - Rule 4: Be a Relentlessly Polite Witness

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Be a Relentlessly Polite Witness," litigation attorney Dan Small continues an in-depth discussion of the rules for witness preparation. In this episode, he emphasizes that witnesses must be relentlessly positive and relentlessly polite, not only for etiquette but also for survival. To accomplish this, witnesses must remember who the audience is and what the challenges are. Testifying is not a game where opposing sides are scoring points; a witness' job is to convince the judge and the jury, not argue with the questioner. Mr. Small explains several tips for helping witnesses overcome this challenge, from keeping their cool to not being afraid of details.

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Dan Small: Don't tell witnesses to be polite, tell them to be relentlessly polite and relentlessly positive. This is not etiquette advice, it's a survival technique. Being polite in this environment can be tough and often a thankless job, but one that is essential to being a good witness. It's hard work, but necessary. The experience of being a witness can run the whole gamut from a polite, friendly session to an angry, adversarial one. Some matters are more emotional than others, and some questioners are more confrontational than others. With all the different factors that may influence how the questioning goes, it's often hard to predict whether you may experience these kinds of problems. It doesn't matter. Whatever the tone of the questioner or the questions, the witness' response should always be the same coolly, unflappably, relentlessly, even infuriatingly polite and positive. Start that way at the beginning and do not change until it's over. It's all about understanding the audience and the challenge.

Remember Your Audience

First, the audience. As we discussed in my podcast, the "Gaps in Witness Expectations," we spend a lifetime talking to people who are talking to us. It's a natural thing to do. But one of the hardest adjustments to this very unnatural witness environment is understanding that is not what's happening here. The questioner is generally not the audience. It's the judge, the jury or other finder of fact who may not be in the room. So arguing with or getting angry with the questioner will only interfere with your communicating with the real audience.

The Challenge: Stay Focused and Keep Cool

Second, the challenge. This is not a game. Your job as a witness is not to score points or make points. Rather, your job is to listen hard, think carefully and answer questions if you can. Anything else is just an unnecessary distraction, which will only diminish your credibility. All good questioners know that an upset witness is an unfocused witness. So if they can throw in a little sarcasm, a garbage question or two, or three teaspoonfuls of righteous indignation, why not? Any antagonism is often just an act to get you flustered. Do not let it happen. How do we do this?

Stay Positive: This Is Your Testimony

First, be positive. This is your testimony, be proud of it, all of it, say it positively. "Yes, I did that." "Yes, I wrote that." Don't let a lawyer playing aggressive or accusatory influence your attitude. If a witness sounds negative or defensive, those who listen will assume that he or she has something to be negative or defensive about. Don't make that mistake. Regardless of the substance, good or bad, remain positive.

Keep a Cool Head

Second, keep your cool. Being a witness is a surprisingly emotional experience. Why? Most people are used to others being positive, pleasant and, if all else fails, at least diplomatic. Suddenly in front of strangers in a strange environment, witnesses are under attack. Their work, profession, company, competence, credibility, decision making, friends, family, all this and more are fair game. Keep your cool. No lawyer's question changes reality. You are the same good person trying to do your best that you were before you began. Be positive, stand your ground, but do it politely and persuasively. Anger rarely persuades.

Avoid Unnecessary Antagonism

Third, don't tease the bear. Everyone here has a job to do. Their job is to ask questions. Do not waste your time and energy belittling or attacking their job, or thinking, saying or implying negative things about the matter, the investigation, the questions or anything else. You will accomplish nothing, distract yourself from your difficult job and needlessly antagonize the questioner. If the questioner is the government, that makes unnecessary antagonism particularly pointless and sometimes foolish.

Let the Lawyers Do Their Job

Fourth, leave it to the lawyers. Your lawyer is there to be both your adviser and, to some extent, your buffer or protector. If there is a reason for things to get difficult, leave that to your lawyer. Stay above the fray. Your lawyer can give and take the heat without it reflecting directly on you. Meanwhile, if there are discussions or objections or arguments among counsel, take the opportunity to listen and learn. What are the issues and problems? How can you best handle them in your answers? After any discussion or distraction take the opportunity to ask for the question again so you can listen to it now without disruption and with the benefit of having heard the preceding debate.

Don't Play Games

Next, don't play games. This could also come under rule three, "tell the truth." Keep it simple, clear and direct. Thinking that you can avoid the tough questions by dancing or fencing with the questioner is arrogant nonsense. Dodging and weaving will only make you look like you're hiding something and will goad the questioner on to more and tougher questions. If you can't give direct, truthful answers to direct questions, don't say anything. Playing games will only make it worse.

Common Witness Games

Here are some common witness games. First, the tense game. Ask about yesterday, I'll tell you about today. Ask me about today, I'll tell you about tomorrow. We were given an example of this at the highest level when President Clinton gave his first television interview responding to claims that he had an affair with a White House intern. No one claimed the affair was still going on. The question was whether it had ever happened. Yet Clinton repeatedly dodged that question by responding only in the present tense that there is no affair. Although in later statements, his denials became clearer, that initial dodge left a sense of dishonesty that was hard to dispel. The definition game. You may think I mean this, but I think it means that. Once again, President Clinton gave an example. Asked a question about an affair with a young woman, he responded that there was no improper relationship. Asked what that meant, he gave no definition. That may work in a brief soundbite or a press conference, but under the glare and repeated questioning of real testimony, this game leads only to trouble. And lastly, the dodge game. You ask me about this, I'll tell you about that. This involves simply dodging the question asked, answering an honest question instead. In politics, they call this "staying on message." In testimony we call it an "invitation to disaster." Like the other games in the hands of a skilled questioner, this will only make your life as a witness miserable. All of these games have been tried before, and none of them work in the long run. Benefit from the bad experiences of prior game players. Don't try it, just answer the question.

Don't Be Afraid of Details

Next, don't get spooked by details. Many questioners thrive on endless, meaningless details, and witnesses often find it disturbing or distracting. There are lots of different reasons for such detail. Sometimes it's just become part of their routine. For example, the Securities and Exchange Commission, the SEC, in its internal manual for conducting investigations, has a standard script for all cases, which contains an absurd number of detailed background questions. Everything from your Social Security number to your home phone number, even when your lawyer is sitting right there and the SEC knows it would be improper for them to call you directly, because it's in the script. SEC investigators ask these questions of all kinds of witnesses in all kinds of cases, even when there's absolutely no reason to go into that kind of detail. Sometimes the reasons are not just bureaucratic. Perhaps the questioner is just flexing his or her muscle by asking seemingly prying questions to emphasize their power to ask or to try to intimidate you. Don't let them win that game. Most of the time, the questioner has wide berth to ask background questions. Even if it's questionable, often it's not worth the time and expense to try to block their ability to ask. Unless your lawyer objects and instructs you not to answer, don't worry about it, just answer the questions.

Take the Questioner's Frustration as a Compliment

Lastly, take their frustration as a compliment. Years ago, I went to my son's first football game. He played defensive line, did well. His team won, and I went out to congratulate him as they came off the field at the end. But to my surprise, he was very upset. I asked why. "It's not fair," he said, "They kept putting two guys on me and I couldn't get to the quarterback. That's not fair." I smiled and I said, "Use your math. Both sides only have 11 guys. If they have to put two on you, what does that mean?" He looked a little less upset and replied, "I guess that means I have one less to stop everyone else." "Yes, yes, it means you're doing something right. Use their frustration as a compliment," I told him. "If they put two guys on you, think to yourself, 'thanks for the compliment. Now get out of my way.'" Same thing for witnesses. A prepared and disciplined witness can be very frustrating to an unprepared lawyer. Witnesses often assume that the questioner's frustration means they've done something wrong. No! More often than not, the questioner's frustration means the witness is doing something right. Don't change. Use their frustration as a compliment. If you were doing something that helped your testimony, keep doing it and more. You're there to give the truth, the whole truth and nothing but the truth, not to fulfill some questioner's fantasies.

If you're going to be able to truly listen, listen, listen, you need to avoid anything that will make that unnatural discipline even more difficult. To accomplish this, you need to keep your cool throughout the process. The more careful and precise you are in listening and answering, the more frustrated the questioner may become. Remember, though, that nothing the questioner says is evidence unless you agree to it. Their frustration, whether real or exaggerated, should not push you to agree. Anger and argument will interfere with the important work you have to do. So don't play that game. Be relentlessly polite.

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