Daniel I. Small, The Daily Record Newswire
One of the many unnatural things about being a witness is that, oftentimes, the most important person in the room is the only one who doesn’t say anything: the person taking the notes.
If it is formal testimony, that may be a court reporter (or a tape recorder). If it’s a less formal interview, there will still be someone taking notes, someone everyone should treat as a court reporter. Assume that everything — questions, answers, comments — is being taken down word-for-word.
What that means is that a witness cannot “unring the bell.” Once words come out, they are committed to the cold written page, under oath. Even humor and sarcastic remarks can read like factual statements in a transcript. Every word is there, for all to see, for all time.
How can you prepare witnesses for such unnatural scrutiny of their words?
First, tell them to slow down and be precise, answering each question as if dictating the first and only draft of an important document.
That’s extremely difficult to do. I have used a dictating machine for many years for all kinds of documents and have become very good at it. Yet even with all that experience, I am still constantly rewinding, rethinking, rewording and retaping. Even after that process, nothing I dictate actually goes out unless I have also reviewed (and usually edited) the printed copy.
A witness has none of those advantages and, unlike me with my dictated documents, is under oath.
Advise witnesses to follow a few basic tenets to avoid creating problems on the record:
• Talk in complete sentences. Unless it is a very clear and simple question, the questions should not be answered “yes” or “no.” Beware of compound questions or questions with double negatives in them.
• Make it clear whether you are paraphrasing or quoting directly. Don’t put words in someone else’s mouth unless you are 100 percent sure.
• Do not adopt a questioner’s summary of your prior statements. The questioner may give a summary that is close to the truth, but incomplete or slightly distorted. If so, just answer, “No,” and if you are asked why you answered “no,” you can explain or elaborate.
• Be aware of the power of language. In a casual conversation, we are very relaxed, even sloppy, about language and choice of words. When every word is transcribed and under oath, language takes on an extraordinary importance, far beyond normal conversation. When two or more sides fight over what those words mean and try to use them for their own purposes, the problems multiply. We must be aware of, and carefully consider, each word in the question.
There are five basic language issues that witnesses must confront.
1) Confusing language
2) Legalese
3) Jargon
4) Relative language
5) Loaded language
I’ll address the first two in this column and tackle the remaining issues next time.
Confusing language
Open any dictionary at random and you’ll see a basic truth: There are very few “simple words” — most have more than one meaning. In the heat of litigation, those differences can be blown up in degree and significance.
If a witness is not 100-percent clear about how the questioner is using a word, he should not answer the question, lest the questioner assume that definition is the one in play. Tell your witness to say, “Please rephrase the question.”
Some years ago I talked about the issue of different meanings at a CLE program. Someone came up to me at the break and said, “As an example, you should talk about contranyms.” A contranym, I discovered, is a word that can mean the opposite of itself. For example:
• “Buckle” can be defined as hold together or fall apart;
• “Clip” can mean cut off or attach; and
• “Oversight” can indicate careful watch or a complete miss.
A common tactic for a questioner is to try to bully through language problems. Consider this exchange:
Q: Who did you report to?
A: Please rephrase the question.
Q: What don’t you understand about my question?
A: I’m not comfortable with “report.” I had consultants and investors, but “report” sounds like I’m in the Army.
Q: You know what the word “report” means, don’t you?
A: Well, yeah.
The witness gave in to a question with the unspoken “you idiot!” at the end. But when I spoke to her later, I told her that the issue is not whether she’s too ignorant to know what “report” means, which was how she felt, but whether the questioner is too ignorant to know that the dictionary has 25 different definitions of the word.
Take another example: a simple word like “fall.” Webster’s defines it as “to descend freely by the force of gravity.” When they were younger, my twin girls had bunk beds. To them, rolling out of the bottom bunk was not a “fall” — it was just rolling out of bed. But even to them, rolling out of the top bunk was “to descend freely by the force of gravity.” So there was a small railing on the top bunk to prevent a “fall.”
I have been called in by several health care companies that are involved with nursing homes to help their trial counsel prepare executives and others for deposition and testimony. In the nursing home world, there is a great deal of discussion about “falls”: fall reporting, fall statistics, fall prevention programs, fall risk levels, etc.
Imagine the impact of all of that on Juror No. 6: He hears the word “fall” and at least part of him is thinking: “top bunk.” Why is Grandma “descending freely by the force of gravity?” How can the nursing home let that happen? Opposing counsel can then take advantage, using that simple word as a weapon.
But words have different meanings in different contexts, and in the nursing home world that’s not what “fall” means. In that context, it simply means “found on the floor.”
Thus, if a resident is “found on the floor,” and no one saw how she got there — even if she is happy and unhurt and simply may have sat down — that is a federally reportable “fall,” and the nursing home is required to record and respond. The witness knows that. Juror No. 6 does not.
It is up to the witness and counsel to make sure that the correct meaning is made clear.
Legalese
In every case there are legal standards and concepts that have to be broken down and explained in clear and simple terms. Counsel must help witnesses understand what they are so they don’t stumble upon them blindly — or get lured into them unsuspectingly. Witness and counsel must then be ready to deal with them during testimony.
The greatest language challenges come when a word exists in the intersection of two or three “language worlds.”
Two quick examples: the seemingly innocuous word “manage” or “manager.” In English it can mean a range of things, from managing a sports team (where “manager” and “coach” can be either synonymous or indicate very different roles) to managing a checkbook, to managing to escape a dull party.
In the jargon of some businesses and industries, “manager” has a particular meaning that may or may not mean the real “boss.”
In legalese, many state legislatures apply the title “manager” to the corporate secretary of an LLC, even though such a statutory manager may only be there to sign documents and have little or nothing to do with running the business. Which meaning does the questioner mean?
Another example: “standard of care.” Seems like a simple phrase, and many unprepared witnesses assume it means whatever is logically the right way to do something. It could be the way they were trained or something in a book or just something that makes sense.
But “standard of care” in a legal proceeding has a very different and far more limited, legal definition.
Different jurisdictions phrase it differently, but the best and simplest definition is just five words: “reasonable care under the circumstances.” It’s a phrase bookended by two words that clearly remove it from the realm of books or fixed standards. What were the “circumstances” at the time, and given all that, what was “reasonable” for that person or entity to do? Common usage or legalese — which does the questioner mean?
Make sure your witness knows before uttering another word.
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Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (3d Edition, 2009). He can be contacted at dan.small@hklaw.com.
