In the latest episode of his "Powerful Witness Preparation" podcast series, Typical 'Wiggles and Squirms' to Avoid Rephrasing a Question, litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. He reiterates that it is important to ask for a question to be rephrased if it isn't clear and fair. He continues by explaining that a witness must prepare for three basic 'wiggles and squirms' that they will encounter when they take the stand.
1) The Court Reporter - The most common "wiggle and squirm" is to use the court reporter. The questioner may ask for the court reporter to read back a question. There's nothing wrong with this and it gives everyone a chance to take a breath and listen to the question again. The problem is that an unprepared witnesses may think if the court reporter can read it back, it must be okay. Court reporters are remarkably good at what they do: but they do not edit, modify, or do anything to improve the words that come out of the questioner's mouth. If the question is not clear or is not fair a witness should always ask for it to be rephrased.
2) The Follow-Up Question - Another classic "wiggle and squirm" is a challenge from the questioner in the form of a follow-up question. The questioner asks a bad question, the witness asks for it to be rephrased. Then the questioner may follow-up with a question asking why the witness didn't understand the first question. A witness should keep it simple. The truth is that most bad questions are bad, at least in part, because they are too long. They should stick to their guns and wait for the question to be phrased in a way that is clear and fair.
3) The Obstinate Child - The questioner asks a bad question and the witness asks for it to be rephrased and the questioner responds with saying they can't rephrase the question and that's the best they can do. If that is the best they can do, too bad. It's the witness' testimony not the lawyer's. Questions have to be clear and fair to the witness, not the questioner.
If the witness imposes the discipline of "Don't Answer a Question You Don't Understand," as outlined in the Rule 5a podcast, these are three "Wiggles and Squirms" the questioner may resort to as a way to rattle the witness and avoid rephrasing the question. They are simple and silly, but often effective with an unprepared witness. Don't let your witness fall for them.
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