March 3, 2020

Podcast - Rule 9: Don't be Intimidated by Documents

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Don't be Intimidated by 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 challenging it can be for a witness to answer questions about documents. Often, witnesses feel anxious when the questioning turns to documents, imbuing them with a sense of magic as though anything written must be true. Mr. Small shows how to correct this misunderstanding, emphasizing that witnesses need to consider the credibility of the document, the language used by the questioner in reference to the document and the context of the document. He also outlines three steps to take when questioned about documents — ask to see the document, read the document and ask for the question again — as well as briefly addresses how to approach questions about prior statements.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: The witness is just settling into their deposition, starting to feel that there might be light at the end of the tunnel, when the questioner pulls out the first document. She waves it around with great flair, asks a few, "Isn't it true?" type questions, slaps it down on the table, and even the most intelligent, articulate witness is lost. "OMG," they think, "she's got a document, I'm in trouble now." All witnesses need to be prepared to deal with documents: both to be careful with them and not to be afraid of them, not an easy task. With any document there are three basic issues. Credibility: Is the document accurate? But really, more important, does the witness know if it's accurate? Language: Is the questioner quoting the document accurately, the exact words, the full sentence or paragraph, the question being answered? And context: Even if the questioner quoted the language correctly, did he or she put it in the right context? What else does the document say on that subject?


Let's discuss the credibility issue. The dictionary defines "credibility" as "worthy of belief to a careful mind." That process of judging whether something is truly worthy of your belief, particularly under oath and on the record, ought to involve a rigorous examination. Yet we all tend to place magic into documents. Oh, if it's written, it must be true. Even the most firmly held memories or beliefs waver in the face of mere ink on recycled paper. It makes no sense, but it happens all the time. The question is simple — does the witness know whether or not the document is accurate? If you don't know, don't assume anything. No document can change your reality.

Documents are just mechanical ways of putting what we think on paper, and they're only as accurate as the knowledge or bias or beliefs of the writer.

If the writer is the witness, maybe the witness remembers a document, maybe not. Maybe the witness knows whether what he said then is still accurate. Most important, if the witness did not write the document, there is little that he or she can truthfully say about it.

I'm often called in around the country to assist in-house and trial counsel in preparing witnesses. Several years ago, I was traveling, working late in my hotel room to get ready to meet with a witness and counsel. I had the TV on in the background and heard something about a mining disaster in West Virginia. Miners were trapped in the coal mine. The next morning I was running late for my meeting, so I didn't listen to the radio or watch TV. But as I left my hotel room, there was a copy of USA Today on my doorstep with the dramatic headline "12 Miners Found Alive." It even had a picture of the joyous faces of the family members. Walking into my meeting, I exclaimed to all, "Wow, great news about those miners, huh?" Except that it wasn't true. And everyone else in the room knew it. For a brief period late that night that happened to coincide with the deadline for USA Today's hotel edition, there was a report that they were alive — thus the dramatic headline — but it was a false report, a mistake. By the time everyone else in the room got later newspaper editions or TV or radio news that morning, it was clear that it wasn't true. All the miners were dead. I show that headline to virtually every witness I work with in any case where there may be documents. There it is, an impressive document. No one was trying to lie or deceive. On the contrary, they thought they were sharing wonderful news, and yet it's completely false. I show the headline to every witness in the hope that they'll think of it every time they're shown a document and ask first, "Do I know whether this document is credible?"


Second, the language issue. The late, great Yogi Berra once said, "I didn't really say everything that I said." That, in essence, is what the witness must make sure. Are the words from a document being quoted accurately, or have they been paraphrased or edited or distorted? Beware of questioners who want to be helpful by trying to summarize or highlight. Do the words being quoted from a document on clear reflection now accurately reflect reality? Email has created a world in which we type in haste and repent at leisure. Did you or whoever wrote or said those words really mean it that way? Were you in 20/20 hindsight being accurate? If not, say so.


Number three, context. When talking about communicating, who better to cite once again than Yogi Berra? "It ain't over till it's over," he said. Has the questioner taken the words out of context? Are they explained later in the document? Is a document part of a series or a chain? At a meeting with the government on an investigation, we were presented with copies of emails from salespeople in the field urging the company to engage in some questionable practices because their competitors were doing it, too. Troubling stuff. But when we went back to investigate further, we found that several of those emails were just one step in a chain, in which the company executives adamantly responded that they could not engage in such conduct and they would not, quote, "stoop to that level." Without context, the words were suspicious. In context, they were clear and helpful. Insist on knowing and explaining the context. The goal in dealing with documents is just to level the playing field. The questioner knows what portions of what documents he or she will use, and they've studied and prepared in advance. The key is to learn a process and a discipline that allows you to take your time, consider the whole document and answer precisely. A document is simply a mechanical way of putting something on paper. Treat it mechanically.

How to Deal With Documents: A Three-Step Process

There's a very simple three-step protocol for dealing with any document. Follow it absolutely. With every document or statement, the simple mechanics of the process will give you comfort and free your mind to focus on the substance. Here's my recommended protocol.

Step 1: Ask to See the Document

Any time you're asked a question, the answer to which is contained in or relates to a document, step one, ask to see the document. Documents are like questions: You have to make sure that you understand the whole thing. You would never, or certainly should never, answer a question when you only heard part of it. Similarly, you should not answer questions about a document until you've read it and understood all of it. Never volunteer the existence of a document. But if you're asked a question about a document or something contained in it, the first step is to ask to see it politely but relentlessly. Do not assume someone else's description is accurate, and don't guess about what it says. I'm constantly amazed at how often witnesses and their counsel allow themselves to be drawn into a debate with a document that's not in front of them. How absurd. How can the witness possibly win that debate? They can't. The best they can do is tie and eventually lose. Do not get drawn into that kind of debate. Ask to see the document. Understand that in most forums, the questioner is not required to show the witness a document. However, if, despite your clear request, the questioner chooses not to show you the document, he or she, in my view, has chosen to ask you to guess because that's the most you can do regarding a document that's not in front of you. Gosh, I'd really need to see it, without seeing it my best guess is, who cares?

Step 2: Read the Document

Step two, read it. If you are allowed to see a document, pick it up, block out everything else in your mind and examine the document as if for the first time. Read the document carefully, no matter how long it takes and regardless of whether you saw it before. It's generally none of the questioner's business what you did in preparation. And if you prepared with your own lawyer, your discussions were privileged. Every time you read a document, you'll see something new. Every time, something you missed before, so it's always worthwhile to read it again. And now you're reading the document with the advantage of having heard some of the questions. Understand that some questioners will try to discourage such a thorough review. They're often only interested in the quick hit, the particular line or word that helps their position, not the full context. But this is your testimony, you're in control and you have a right to clear and fair questions. Picking a piece of a document out of context isn't fair, at least until you've reviewed and considered the entire document. Once you've done that, you may wish to consult with your lawyer if it's appropriate, particularly if reading the document raises any new issues.

Step 3: Please Repeat the Question

Step three, ask for the question again. Once you've given the whole document careful thought, put it down and ask to have the question again. Now, you can focus not just on the words the questioner may have picked out, but on the whole portion of the document related to the issue. Think about it: A document that may be important to a questioner now may have been unimportant to you when you wrote it months or years ago, little more than a blur to you today. Let's say that you write a rough average of five documents an hour during an eight hour workday, including memos, emails and texts. It's probably many more, right? That's 40 documents a day, five days a week, roughly 50 weeks a year. Pretty conservative numbers for many people, but they still mount up quickly. If a questioner asks you about something that you wrote only a year and a half ago — and in many cases, the gaps can be much longer — that means you've written about 15,000 documents since then. Put in that context, it's much easier to understand why you might not remember that one particular document clearly. That may not be what the questioner wants to hear, but it's the truth.

How to Deal With Prior Statements

Be careful with documents, prior statements and testimony. People sometimes act as if prior statements have magical powers. However, a document that claims to represent a prior statement or testimony, whether yours or someone else's, should be treated like any other document. A witness has to see it, read it carefully, think about what it is and understand what the questioner is trying to do with it, and then ask for the question again. Only then can you answer a question based on it. There's no magic to this, just patience and discipline. Your job as a witness is to answer questions based on the facts, not on what someone might have said before. If you are asked a question based in any way on a prior statement, the mechanical process is identical to any other document. Into that mechanical process come three important concepts regarding prior statements. One, insist on clarity. Two, understand the context. And three, remember that everyone says things differently. You have the right to question the questioner and the responsibility to do so carefully. When someone tries to push you to agree with a prior statement, take the magic out of it. Remember the child's game of telephone? Everyone sits in a circle and they whisper one thing from one to another, and by the time it gets all around the circle, it's often hilariously different from the original. Prior statements can be like that.

If you were wrong before or simply remember it differently now, just say so. You should have the right to clarify any misunderstanding. If you disagree with what someone else said, just say so. Doesn't mean that they're lying, just that there are always differences in memory or perception. Even if you know you purposely said it wrong before, talk to your lawyer. Often there is an explanation that's important to bring out. If it's just a normal mistake, clarify it, answer the question simply and don't be defensive.

Paper, paper, paper, paper. We take a bunch of trash, we recycle it, we grind it all up, we mix in a bunch of smelly chemicals and out comes paper. It's a waste product, a mechanically made product to mechanically record what someone wants. Take the magic out of it, treat it mechanically, follow the protocol and don't be intimidated by a piece of paper.

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