Podcast - Rule 8: Do Not Volunteer Information
In the latest episode of his "Powerful Witness Preparation" podcast series, "Do Not Volunteer Information," litigation attorney Dan Small continues his in-depth, 10-part series on the rules for witness preparation. As the title suggests, this discussion focuses on feeling comfortable with silence. In normal conversation, people avoid uncomfortable silences, but in testimony, witnesses should embrace them, following the pattern of question, pause, answer, stop. In this episode, Mr. Small explains two ways to help witnesses do just that: breaking the chain of connections and avoiding volunteering information.
Dan Small: Question, pause, answer, stop. That is the unnatural rhythm of the witness environment. In prior podcasts, we've talked about rules for witnesses for the first three of these four steps. Question: rule five podcast covered don't answer a question you don't understand. Pause: rule one covered count to five after each question. Answer: rule six addressed don't guess if you don't remember, just say so. Now we talk about the stop. It's something else about being a witness that most people are not prepared for, silence.
Break the Chain of Connections
In a conversation, we're used to filling the silences. Everyone is familiar with uncomfortable silence, and we all try to avoid it. Witnesses have to be prepared to answer and then stop. Don't volunteer additional information just to fill the silences. This is unnatural in several respects. The essence of conversation is connections: One thought leads to another, and the conversation flows. If you're chatting over lunch and your companion asks if you saw a recent movie, your response will probably not be a simple yes or no. Rather, you'll go on to talk about whether you liked it, who you saw it with or what other movies you've seen with some with the same actor or actress or whatever else interests you. Think about how a conversation like that might go.
Question: "Hey, did you see movie X with actor Smith?"
Answer: "Yeah, but you know, I really like him better in movie Y, the acting was better. Of course it may just be that the night I saw that movie was really memorable, since Mark almost got arrested on the way home. The movie went longer than we thought, so Mark was really speeding on the way home and saw the police car just in time. He's such a crazy driver. I'm really worried he's going to get into an accident someday." And so on.
A conversation that started with a simple question about movie X has quickly flowed along to Mark, the dangerous driver, through a series of understandable connections. No one asked about Mark or even movie Y, but in a conversation, that kind of volunteering is all right. As a witness, it is not all right. In the unnatural question and answer world of being a witness, connections are not the goal. Your job as a witness is generally to answer the question carefully, briefly and precisely, and then go home. Question, pause, answer, stop. The questioner's job is to ask the right question to get at the information he or she wants. It should not be the questioner's job to help answer the questions by trying to put words in your mouth, nor should it be your job to help the questioner ask better questions or to volunteer information beyond the narrow lines of the question. Connections mean that you are volunteering information. Don't do it. You may think that it will somehow help or shorten your time as a witness, but it won't. Wait for a clear and simple question. Keep your answer as short, simple and narrow as possible, and then stop. If a questioner does not follow up with more questions and thereby misses other information, that's not your problem. Your volunteered edition may be inadmissible, irrelevant or just off track. You have not limited the number of questions that he or she can ask, and so you do not need to volunteer something that was not asked.
Think about what the same movie discussion might look like with a careful witness who does not volunteer.
Question: "Did you see movie X with actor Smith?"
Question: "Did you like it?"
"Have you seen any other movies with actor Smith?"
"Which movie did you like better, movie X or movie Y?"
"I'm not sure."
And so on. Each question is an answer truthfully, but you have not done the questioner's job for him or her. You have not volunteered. You have broken that chain of connections. It may not make for exciting conversation, but it does make for good testimony. There are no shortcuts here. Answer each question at its most basic level. Move forward in small, easy steps. Don't try to help the process along or anticipate where it might be going. Too often that means going off that straight and narrow path forward. Those kinds of side steps can take much more time in the long run and greatly add to the difficulty of being a witness. Your goal should be to give the questioner nowhere to go but forward, toward the end.
Don't Volunteer Information
Some time ago, I represented an investment manager in testimony before the Securities and Exchange Commission, the SEC. Through a long day of questioning, he did a great job of listening carefully and keeping his answers precise and simple. It was hard work, and it went against his talkative nature. Finally, late in the afternoon, he faltered. He answered a question, completely stopped and then thought of something related to the question that he wanted to say. Like the movie example, he answered the question about movie X, but his mind made a connection to movie Y. The good news was that as he started to say something else, he remembered the rule, caught himself and stopped. The bad news was that the SEC lawyer, tired of having to deal with a careful witness, picked up on his hesitation and pushed him to say what he had started. Before I could remind him that he had already answered the question, he was off on this tangent. Although it was actually an insignificant matter, the questioner was so intent on pursuing anything that came out spontaneously that we ended up going on and on about this new topic for half an hour before it petered out and we got back to the original line of questions. When we went out for the next break, my client looked at me sheepishly and said, "You don't have to say anything. I know what I did wrong." In an effort to help things along, he had only added to the process. His shortcut had wasted half an hour that would have been saved by silence.
Not volunteering additional information beyond the direct answer means realizing that silence is OK.
This is a hard adjustment. We don't like it, and experienced questioners know this. They know that silence can be a very effective tool by playing off that natural discomfort. A questioner may use silence by simply waiting at the end of your answer, as if, "Surely you can't be finished, surely there is more." Don't play that game. Answer the question simply, then stop and wait for the next question. Use the silence to prepare for what is ahead, not to volunteer more of what is passed.
Exceptions to the Rule: Misunderstanding and Core Themes
There are two general exceptions to "do not volunteer" that a witness and his or her lawyer might want to discuss. The first is the simple misunderstanding exception. If the questioner and you are not communicating and becoming bogged down because of a clear and simple misunderstanding over a basic fact, it may be worthwhile to volunteer to correct the error. The second exception is for core themes. Every matter has a few key themes that you as a witness may wish to get across. The more involved the witnesses with the matter, particularly as a party, the more important these themes become. If the witness and his lawyer or her lawyer agree on these themes, the two of you may also want to think about whether and when you want to go beyond the simple answer to a question and volunteer information to support it. It's important to note that if you are hit with a flash of insight or recollection while answering questions and it has not been previously discussed with counsel, if possible, hold this to yourself until you have a chance to go over it with counsel, perhaps at a break. Counsel should not be caught unprepared, and your volunteering the sudden memory flash may cause a variety of problems.
Question, pause, answer, stop. That is the rhythm of being a witness. Practice the stop, and practice silence. They are not natural or easy, but they are essential. Don't volunteer information not covered in the question.