November 19, 2019

Podcast - Rule 5a: Don’t Answer a Question You Don't Understand

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Don't Answer a Question You Don't Understand," litigation attorney Dan Small continues his 10-part series on the rules for witness preparation. In this episode, he reminds listeners that witnesses should only answer the questions they fully understand. What does it mean to "fully understand" a question? Mr. Small describes three tests — clarity, comprehension and comfort — but emphasizes that above all, if a question contains assumptions that the witness doesn't understand, doesn't agree with or simply isn't comfortable with, they should not answer. When in doubt, "Please rephrase the question."

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Dan Small: In the futuristic movie "I, Robot," Will Smith's detective speaks through a computer-generated hologram of the scientist whose death he is investigating. When the detective's questions veer off from being clear and simple, the hologram intones, "I'm sorry, my responses are limited. You must ask the right questions." Real witnesses, even more than holograms, have both a right and a responsibility to insist on clear and fair questions. In a casual conversation, it's common for one person not to understand fully or with certainty what another is asking, but it doesn't matter. Questions are not really questions in a conversation, they're more like prompts to move it in a particular direction. The conversation flows along in that new direction, and if the person who asks the question cares, he or she can bring it back by asking the question again or in some other way. You would never be so blunt as to simply say, "Please rephrase the question," and then stop. Precision is not the point, and if it gets in the way of conversation's flow, it loses every time. By contrast, in the unnatural environment of being a witness, precision is crucial. When everything that's said is being taken down under oath and picked apart, the question becomes part of the answer. When you answer a question, it will be assumed that you understood the question and that you agree with anything in the question that you don't clearly dispute. If you later get a chance to review a transcript, you'll be amazed at how many questions were really unclear or misunderstood. However, by the time you read the transcript, it's usually too late.

Understanding the Question: Control is Key

The key is control. You are the witness. This is your statement. You have a right to clear, simple questions and to only answer questions that you understand. Otherwise, don't answer. Just say, "Please rephrase the question," or something like that, and stop, no more than that. There's no limit to how many times you can ask until you get a question you understand. Don't offer to get into a discussion over what you didn't understand, and don't help the questioner by saying, "Well, did you mean X, or did you mean Y?" He or she may have meant Z, something entirely different, but now you'll be asked all three questions. The only exception here is if the question is clear but the context is not. What time frame are we talking about? Which person are we talking about? What location are we talking about? In these types of instances it may, depending on what you and your lawyer agree on, be reasonable to ask for the context, not just rephrase. A dirty little secret of the legal profession is that this discipline really works. Witnesses complain to me all the time, "Oh, come on, Dan, that's not going to work. He's just going to ask the same question again." But even if he does, so what? What has the witness lost? In an extraordinary percentage of times, those four magic words, "please rephrase the question" will work. Why? For any number of reasons, including, number one, the questioner was trying to pull a fast one and now they've been caught. They have to go back and ask a clearer or fairer question. Number two, the questioner made a mistake. The words came out wrong, and now they get to try again. Number three, the questioner doesn't remember what they asked, and now they have to try something else. Whatever the reason, with this simple request, you often get a clearer and fairer question. Stick to your guns. Taking your time, which I've addressed in prior podcasts, becomes particularly important here. To fully understand a question, the witness must apply three tests, if you will, clarity, comprehension and comfort. Until a question is passed all three of those tests, the witness should not answer it.

Test 1: Clarity

Number one, clarity. Clarity means only one thing: Did you hear the whole question, and was it clear to you? It doesn't matter whether it would have been clear to someone else. It doesn't matter whether the questioner thought it was clear. And it doesn't matter why it wasn't clear. Even the best questioners phrase things wrong, and even the best witnesses get distracted or confused. You know from your own experience that even when you know what you want to say, the words sometimes don't come out right. The more you're talking and the harder you're thinking, the more often this will happen. Now, imagine having to think up and ask questions for hours or days at a time. Sometimes it's a wonder that anything comes out straight. Do not be surprised or feel uncomfortable if some of the questions don't come out clearly. Just don't answer them. Sometimes the questioner won't realize or will pretend not to realize that a question wasn't clear. That's not your problem. It doesn't matter whose fault it was that you felt the question was unclear. All that matters is that it was not clear to you. Ask that it be rephrased, and keep asking until it's clear. If the questioner acts surprised or irritated, don't be intimidated, you've done nothing wrong. Keep your cool, as we said in rule four, and keep demanding simple, clear questions. Please rephrase the question.

Test 2: Comprehension

Number two, comprehension. Comprehension means that even if you heard the words, do you really understand what's being asked? That doesn't mean you think you understand what they might be asking or what you were afraid they would ask, just whether you understand the narrow question that came out of the examiner's mouth and will now appear in the transcript or other record. Nothing else matters at that moment. To focus so completely on one question is hard work and unnatural. Do you really know what the questioner means by every word or phrase? Is the question short and clear enough to make that possible? Our natural tendency is to focus on the gist or the direction of a question. In this unnatural environment, it's the actual words that matter most, not the gist of it. Take each question one at a time. Listen only to what it is, and then ask yourself if it makes sense. If it doesn't, don't answer it, just say, "Please rephrase the question." If you do understand it, answer it simply, then stop and wait for the next question.

Test 3: Comfort

Number three, comfort. Comfort means the words themselves seem clear, but are you comfortable with what it contains, or the way it's being asked? The most common source of problems here comes from the assumptions that are contained in the question. The classic example many lawyers use is the witness who was asked the yes or no question, "Have you stopped beating your wife?" A simple question on its face, but by asking if you've stopped, the question assumes that you started. You can't answer the question without essentially agreeing that you've been beating your wife. Almost all questions contain assumptions of some kind. Think about something as basic as "Isn't it true that it's a nice, warm Thursday today?" A seemingly simple question, yet filled with assumptions. Some are obvious — if today isn't Thursday, the problem is so apparent that even in casual conversation you might stop the flow to correct the date. Then again, if the main topic of casual conversation is the weather or something related to it, like what are we going to do today, then you might not catch the irrelevant error, or catch it but choose not to correct it. After all, who cares? You know what day it is. Yet in the formal world of a witness, by not correcting it, you would have agreed with, and thus adopted as your own, a false statement. The problem gets worse when the assumptions get more subjective. For example, in that same question, what does "warm" mean? If I use that word with people in Florida, it means one thing, but with people in Alaska it may mean something very different. In a casual conversation, no one is being that precise. Everyone generally understands the context. And even if there is any misunderstanding, it doesn't matter that much. Here again, a witness does not have those luxuries. If you accept someone else's assumptions, you have put your word and your future behind a statement that you may not understand or agree with. The solution is simple. If a question contains assumptions that you either don't understand or don't agree with, or just aren't comfortable with, don't answer it. Either ask that it be rephrased or directly challenge the false assumption. This is questioning the questioner. It enhances a witness' stature as the one in control and derails poor questions. For example:

Question: "Isn't it true that it's a nice warm Thursday today?"

"Would you please rephrase that question?"

"Isn't it a warm Thursday?"

"I'm sorry, but I don't think it's Thursday today."

"Oh, well, it's a warm day today, isn't it?"

"Would you please rephrase the question?"

"Do you know what the temperature is outside now?"

"No, I don't."

In this overly simple example, the path to comfort may seem extreme, but the discipline of insisting on it is terribly important. Remember, this is your statement, and you have a right to insist on questions you can understand, whether or not it gives the questioner what he or she wants. "What's the temperature?" is a question you can be comfortable with, whether or not you know the answer. "Nice and warm," in this artificially precise environment, are not comfortable assumptions. "Yes or no?" The other part of comfort is that you must be equally comfortable with your answer. The most important issue here is yes or no.

The great mathematician Pythagoras said that the oldest, shortest words, "yes" and "no," are those which require the most thought. That's important wisdom for every witness.

Despite the examiner's wishes, many questions cannot be answered simply "yes" or "no." Listen carefully to the question, think about the assumptions it contains, and if you have any uncertainty, do not give a simple yes or no answer. Ask that it be rephrased, and if that doesn't work, challenge the yes or no assumption, "I'm sorry, but I can't answer that with just a yes or no." There are as many reasons why you might not understand a question as there are possible questions. We've only discussed some of the more common problems, but the point is, it doesn't matter why or how you don't understand. This process is too important and too precise to fudge by answering a question you don't understand. Don't do it. Just say, "Please rephrase the question."

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