Podcast - Rule 9: Don't be Intimidated by Documents
In the latest episode of his "Powerful Witness Preparation" podcast series, Don't be Intimidated by Deposition Documents, litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. In this episode Mr. Small shares how difficult it can be for a witness to answer questions that are related to specific document. Mr. Small explains that a witness can avoid this stress by focusing on what he says are the three main issues to consider with any document.
1) Credibility - Does the witness know if the document is accurate? If they don't know, they must not assume anything. No document can change their reality. Documents are just mechanical ways of putting what we think on paper, and they are only as accurate as the knowledge or beliefs of the writer. If the witness did not write the document, there is little that he or she can truthfully say about it.
2) Language - Is the questioner quoting the document accurately? It is important for the witness to decipher whether the words from a document are being quoted accurately, or they have been paraphrased. They must be cautious of questioners who want to be "helpful" by trying to "summarize" or "highlight" specific parts of the document. It is also important to realize that email has created a world in which we type in haste and repent at leisure. A witness must always question if whoever wrote or said those words really meant it that way?
3) Context - Even if the questioner quoted the document correctly, did they put it in the correct context? Has the questioner taken the words out of context, are they explained later in the document, is the document part of a series or chain? These are all important questions that witnesses need to ask themselves before responding to the questioner.
Mr. Small also recommends that a witness takes two important steps anytime they are asked a question and the answer to the answer to the question is contained in or relates to a document.
1) Ask to see the Document - Documents are like questions. A witness must make sure they understand the whole thing. You should never answer a question if you've only heard part of it. A witness should never volunteer the existence of a document but if they are asked a question about a document they should always ask to see the document in question. A questioner is not required to show the witness the document so it is very important to ask.
2) Read the Document - If your witness is allowed to see a document, they should pick it up and examine the document as if it were their first time reading it. They must read the entire document carefully, no matter how long it takes, and regardless of whether they saw it in preparation for their testimony. Once the witness is done reading over the document they should then ask the questioner to repeat the question.
No matter what a questioner says or does, your witness has a right to review a document for its credibility, knowledge and context. Some questioners will try to discourage such a thorough review but your witness is in control and they have a right to clear and fair questions.