March 17, 2020

Podcast - Rule 10: Witnesses Need to Use Their Counsel

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Witnesses Need to Use Their Counsel," litigation attorney Dan Small concludes his in-depth, 10-part series on the rules for witness preparation. The final rule concerns four crucial ways a lawyer can help a witness while they are on the stand. Lawyers and witnesses should be clear about their relationship and remain vigilant about protecting privilege. Witnesses should be encouraged to take breaks early and often, and when their lawyer makes an objection, they should stop, listen closely and wait before continuing. Finally, in some forms of testimony, witnesses and counsel have the opportunity to review the transcript and submit an errata sheet, an opportunity that should not be ignored. Above all, Mr. Small says, no matter how much time is spent preparing a witness, there is still plenty counsel can do to help them during questioning, and a good lawyer will do everything to provide that assistance.

Listen to more Powerful Witness Preparation Podcasts here.

Dan Small: No matter how much time is spent in preparation, there's often still a lot a witness' lawyer can do to help while the witness is being questioned. A good lawyer will do everything appropriate to provide that assistance. So when a U.S. senator tried to keep lawyer Brendan Sullivan from talking too much during the Iran-Contra hearings, he countered, "Senator, I am not a potted plant." He apparently received potted plants in the mail from appreciative trial lawyers around the country, and the phrase became a symbol for lawyers actively representing witnesses. A witness' lawyer can help his client in a variety of ways at each stage of the process. Although there are differences depending on the type of questioning or proceeding, the types of help may include the following.

Privilege: When in Doubt, Ask

Number one, privilege. Both lawyer and witness should be clear up front about what their relationship is. I learned that early as a federal prosecutor. The people were my client, but I had no attorney-client relationship or privilege with any witness. If the lawyer does represent the witness, then both have to be vigilant to protect that privilege. Privilege issues fill volumes of case law and analysis. It can be confusing. When in doubt, a witness needs to stop and ask. One common area for which it's important to prepare is questions about the preparation. Preparation with a witness' own counsel is strictly privileged; however, many questioners will ask about the logistics of the preparation in the hope of getting more. The logistics means who, when, where, etc. That's fine, and no witness should ever feel defensive about having prepared for such an important event. But be careful about opening the door to privileged communications. What was said remains strictly off limits, or the questioner may claim that the privilege has been waived. If the witness is not a direct client, that should not deter preparation. Just prepare your witnesses so they know that opposing counsel may ask about the conferences and then conduct the conference accordingly. Preparation is about seeking the truth. I tell witnesses, "I'm not here to tell you what to say. All I want to do is to learn the truth. And if I say anything that's not right, please correct me. I want you to be comfortable that if anyone asks you what I told you to say, I just told you to tell the truth." And preparation is about asking questions. "Madam Witness, we're trying to get at the truth here, so I have a lot of questions to ask you, some of which they may ask, and documents to show you and ask you about that they may show you as well. Would that help you out?"

Take Breaks, Talk to Counsel

Number two, breaks. Being a disciplined witness is surprisingly exhausting mentally. There are many things we do in our normal lives that are more exhausting in short spurts, but few that require the unrelenting intensity and focus of being a witness. What that means is that this is a marathon, not a sprint, and the witness has to prepare himself accordingly. Have your witness take breaks early and often for any reason or no reason.

The challenge for the witness is to know themselves well enough to take breaks before they really need them, not four or five questions after they've lost focus. In addition to combating exhaustion and distraction, breaks can be important for other reasons. One of those is the assistance of counsel. A witness' lawyer is their only friend in the room, no matter how friendly others may seem. If the type of proceeding and local rules allow it, a witness should break to talk to counsel for whatever reason and however often. Whatever a questioner might say, it doesn't look bad on the record, and it will not reflect badly on testimony. Sounds easy, but in some cases it may feel uncomfortable. After all, in a normal conversation, we don't usually get up and walk out of the room to talk to someone else and then come back. It stops the flow, people look at you funny and you feel self-conscious. Too bad. A witness is involved in an unnatural process. Having the regular opportunity to take a break and to confer with counsel is far more important than any minor feelings of discomfort.

Objections: Stop and Wait

Number three, objections. If you find yourself in a proceeding during which counsel makes objections, do not make the mistake of treating them as irrelevant legal technicalities. If you see a lawyer getting up to object, stop and wait. Listen closely to any objection and response, and consider it carefully. You may learn something important about the question and how it could be handled from the objection. In a deposition, the rules that govern counsel in most jurisdictions prevent objections that go to the substance of the testimony, hearsay, irrelevance, best evidence, etc. Since the deposition is supposed to be a far-ranging discovery process, there's no judge to rule on objections and no jury to hear objectionable testimony. It can be dealt with later before the case goes to trial. The principal objection in the deposition is objection to form. Lawyers can be as lazy as other human beings and may shorten those three words to simply "objection" or even just "form," but the intent is the same.

The problem is that when most unprepared witnesses hear one or more of those three words — "objection to form" — they assume that it is some technical legal nonsense that they can ignore. So they plow forward, undaunted by the objection. Alas, they're only half right.

There are technical legal reasons for objections to form. However, the more important half is that counsel has heard something about the question to which he or she objects. Objection to form is shorthand for, "I have an objection to the form in which that question was asked." If your lawyer has that kind of a problem with a question, maybe you should, too, and ask to have it rephrased. It's important to understand that objection is generally not an instruction not to answer. There are only a few areas in a deposition in which counsel can give such an instruction. In the Federal Rules of Civil Procedure, for example, they're defined as, "Counsel may instruct deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion." Thus, the witness must generally answer the question despite the objection. However, "please rephrase the question" is an appropriate answer to a bad question.

In a complex contracts dispute between two healthcare systems whose cooperative effort had turned into finger pointing, the top executive of the joint venture was called for deposition. He was an intelligent, articulate administrator who, during preparation, typical of that kind of successful person, had a hard time understanding why he had to slow down, listen and insist on clear questions. It took a good deal of work to persuade him, but he finally got it. The questioning lawyer was talented and experienced but, like most lawyers, spoiled. Spoiled by years of questioning poorly prepared witnesses who did not challenge bad questions. As a result, he repeatedly asked questions that were too lazy, too long, too complex and too confusing. I objected to form, and my witness asked to have the questions rephrased. Unable to have his way with the witness for a change, the questioner became more and more frustrated. Finally, he asked yet another bad question, I made yet another objection to form and my witness yet again asked to have the question rephrased, and the lawyer could no longer contain himself. "Mr. Witness, you don't have to do that, you know." And there was a pause, and my witness said, "Do what, Counselor?" "Well, just because your lawyer objects to form, you don't have to ask me to rephrase the question." And there was a pause, and my witness said, "I know, but it does kind of raise a red flag, doesn't it?" And everyone in the room laughed except for the questioning lawyer. Exactly right. Whatever the other technical legal meanings of objection to form, it is also a bright red flag that there were problems with the question. There's nothing automatic or universal here. And maybe counsel hasn't heard the question right or misjudged it, but maybe not. Please rephrase the question.

Review the Transcript, Submit Errata Sheets

Number four is errata sheets. In a deposition or other form of testimony where the witness and counsel have the opportunity to review the transcript and submit an errata sheet, too many lawyers treat that process as a trivial chore. It should instead be viewed as an important opportunity to continue the dialogue with your witness. Ask him to review it with three things in mind: a) typos and other errors; b) points that, in 20/20 hindsight, he got wrong or simply wishes he had said differently; and c) issues or questions that reading through the transcript raises in his mind. Then take the time to go through all those things with the witness. I'm a believer in being aggressive about errata sheets. Better to clarify something now than have to deal with it down the road or at trial. There is some disagreement among jurisdictions, but the majority rule is that it is permissible to make substantive changes in an errata sheet. The process is not without risk. Among other things, if the changes are too great, the other side may seek to reopen the testimony. Still, the benefits of a clear record generally outweigh the risks. A witness will hopefully spend a great deal of time and effort working with counsel before questioning to prepare. Counsel, in turn, has a great deal of experience dealing with the environment. Use that crucial combination of effort and experience at every stage of the process.

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