December 3, 2019

Podcast - Rule 5b: Typical 'Wiggles and Squirms' to Avoid Rephrasing a Question

Powerful Witness Prep Podcast Series

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 10-part series on the rules for witness preparation. Picking up from his last episode, "Don't Ask a Question You Don't Understand," he talks about what he terms the "wiggles and squirms" of the witness environment. Much as a child wiggles and squirms when a parent imposes rules and discipline, a questioner will wiggle and squirm when a witness imposes rules and discipline by demanding clear and fair questions. Mr. Small discusses three common "wiggles and squirms" used by questioners and explains how to counteract them.

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Dan Small: In the last podcast we talked about rule five, "Don't answer a question you don't understand," and the challenge of imposing discipline on the process by responding simply, "Please rephrase the question." This is not a game. The questioner is generally not limited to some arbitrary number of questions. We'll answer as many questions as they want, but they must be clear and fair questions.

The "Wiggles and Squirms" of the Witness Environment

Every parent knows that when you try to impose rules and discipline on children, they'll try different ways to wiggle and squirm out from under. Questioning attorneys are much the same. If a witness imposes the discipline of insisting on clear and fair questions, of saying, "Please rephrase the question," they'll try to wiggle and squirm out from under and keep doing things their way. The reality is that too often, the questioner does not want clear and carefully considered answers to clear and fair questions. They want the careless, thoughtless stream of consciousness stuff. They want confusion, not clarity, because confusion creates mistakes. They want the bad soundbite, not the good real answer. The good news is that while children have a seemingly endless variety of wiggles and squirms, the witness environment leaves the questioner with fewer options, basically only three. If you can help your witness to understand what they are, then rather than scratch their head and wonder what they've done wrong, they'll be ready for it and they'll know what they've done right. If they're prepared for them, it makes their task much easier. Let's look at all three.

The Court Reporter

The first wiggle and squirm is the court reporter. It's the most common wiggle and squirm. Using the court reporter, the questioner asks a bad question, the witness says, "Please rephrase the question." Then the questioner says, "Would the court reporter please read back that question?" There's nothing wrong with that. On the contrary, it gives everyone a chance to take a breath and listen to the question again. The problem is that time and again, unprepared witnesses think, "Gee, if the court reporter can read it back, it must be OK." So they answer the bad question. No! 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. It's garbage in, garbage out. If the question was gibberish, the repeat will be gibberish. The key is to understand that by using the court reporter, the questioner has not done what the witness asked. The questioner was not asked. "Please repeat that bad question." The request was, "Please rephrase." Don't give up and don't give in. If the questioner's response is to have the court reporter mirror back the same bad question, the witness should listen carefully, pause and then mirror back the same reply. Listen, pause and then politely say, "Please rephrase the question."

The Follow-Up Question

The second wiggle and squirm is the follow-up question. It's a challenge from the questioner in the form of a follow-up question. The questioner asks a bad question. The witness says, "Please rephrase the question." And then the questioner says, "What's wrong with my question?" or, "What didn't you understand about my question?" That one often comes with the unspoken, "you idiot," as in, "What didn't you understand about my question, you idiot?" The questioner has now posed a new question, a follow up, and we need to consider the options for responding. There will be occasions when the question is short and clear enough that the witness can easily identify a word or a phrase that trouble them and can respond simply, such as, "I'm not sure what you mean by such and such." However, the ability to be that precise and limited in finding a question's flaws is surprisingly rare. Lawyers are spoiled. We are spoiled by witnesses who are not well prepared and who allow us to get away with questions that are long and complicated and ugly. Keep it simple. The truth is that most bad questions are bad, at least in part, because they're too long.

When I teach lawyers how to try cases, I always warn them not to ask questions that are more than four to six words long, which, if you try it, is a very short question. Longer than that, and the question is bound to be compound, confusing and vague. Break it up into the four or five short questions you should have asked. The same discipline should hold for witnesses. Give the questioner the benefit of a few extra words. But if a question is more than eight to 10 words long, still a pretty short question, alarms should go off. Don't answer it. It's bound to be neither clear nor fair. No witness can keep track of the whole thing. It's almost certain to have assumptions, multiple questions, language issues and more problems. So the majority of the time, the best, most truthful and easiest response to the follow-up question is quite simply:

"It's just too long and confusing, can you break it up for me?"

"What's wrong with my question?"

"It's just too long and confusing, can you break it up for me?"

"What don't you understand about my question?"

"It's just too long and confusing."

That's all. End of dialogue.

The Obstinate Child

The third wiggle and squirm is the obstinate child. You've seen them in the corner stamping their feet in frustration, screaming, "No, no, no, I won't!" Here's the lawyer's version: The questioner asks a bad question, the witness says, "Please rephrase the question," and the questioner says, "No, that's the best I can do," or, "No, I think that's a perfectly straightforward question." Sadly, I read transcripts all the time where unprepared witnesses obviously think, "Well, if that's the best he can do, I guess I have to answer it," and away they go. No! If that's the best he can do, too bad. This is the witness' testimony, not the lawyer's. Questions have to be clear and fair to the witness, not to the questioner. Why would the questioner's opinion of their own questions matter? They don't! Here again the questioner has created a problem with a bad question and then done nothing to fix it. Don't answer it. Treat the obstinate child like an obstinate child. Gently but firmly just say, "I'm sorry, I still don't understand. Why don't you ask another question?" If the witness imposes the discipline of rule five, "don't answer a question you don't understand, " those are the three wiggles and squirms that the questioner may resort to. They are simple, silly, but too often effective with an unprepared witness. Don't fall for them. The great Spanish novelist Miguel de Cervantes said, "Forewarned, forearmed, to be prepared is half the victory." The more a witness knows what's coming, the better they are able to deal with it. Teach the discipline, and teach the response.

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