Daniel I. Small, The Daily Record Newswire
Don’t just tell witnesses to be polite. Tell them to be relentlessly polite. And relentlessly positive.
That’s not etiquette advice. It’s a survival technique. Being polite in this environment can be a tough, often thankless job, but it is essential to being a good witness. It’s hard but necessary work.
The experience of being a witness can run the whole gamut from a polite, friendly session to an angry, adversarial one. Some matters are more emotional than others, some questioners more confrontational than others. With all the different factors that may influence how the questioning goes, it’s often hard to predict exactly which kinds of problems a witness may experience.
But take note: It doesn’t matter. Whatever the tone of the questioner or the questions, the witness’s response should always be the same: coolly, unflappably, relentlessly — even infuriatingly — polite and positive. Start that way at the beginning, and do not change until it’s over.
It’s all about understanding the audience and the challenge.
As discussed in prior columns, we spend a lifetime talking to the people who are talking to us. It’s the natural thing to do. But one of the hardest adjustments to the very unnatural witness environment is understanding that that’s not what’s happening here. The lawyer is generally not the main audience; it’s the judge, jury or other finder of fact. So, arguing with or getting angry with the lawyer will only interfere with communicating with the real audience.
This is not a game. A witness’s job is not to score points or make points; rather, it is to listen hard, think carefully and answer all questions if possible. Anything else is just an unnecessary distraction, which will only diminish credibility.
All good questioners know that an upset witness is an unfocused witness, so if they can throw in a little sarcasm, a garbage question or two, or “three teaspoonfuls of righteous indignation,” why not? Any antagonism is often just an act to get the witness flustered. Don’t let it happen.
Tell your witness:
1) Be positive.
This is your testimony. Be proud of it — all of it! Say it positively. “Yes, I did that!” “Yes, I wrote that!”
Don’t let a lawyer playing aggressive or accusatory influence your attitude. If a witness sounds negative or defensive, those who listen will assume that he or she has something to be negative or defensive about. Don’t make that mistake. Regardless of the substance, good or bad, remain positive.
2) Keep your cool.
Being a witness is a surprisingly emotional experience. Why? Most people are used to others being positive, pleasant and, if all else fails, diplomatic. Suddenly, in front of strangers, in a strange environment, witnesses are under attack. Their work, profession, company, competence, credibility, decision-making, friends, family and more are fair game.
Keep your cool. No lawyer’s question changes reality. You are the same well-meaning person that you were before you began. Be positive. Stand your ground, but do it politely. Anger rarely persuades.
3) Don’t “tease the bear.”
Everyone here has a job to do. The questioner’s job is to ask questions. Don’t waste your time and energy belittling or attacking that job or thinking, saying or implying negative things about the matter or investigation, the questions or anything else. You will accomplish nothing, distract yourself from your difficult job, and needlessly antagonize the questioner (and if the questioner happens to be the government, unnecessary antagonism is particularly pointless — and foolish).
4) Leave it to the lawyers.
Your lawyer is there to be both your advisor and, to some extent, your buffer or protector. If there is a reason for things to get difficult, leave that to your attorney. Stay above the fray. Your lawyer can give and take the heat without it reflecting directly on you.
Meanwhile, if there are discussions, objections or arguments among counsel, take the opportunity to listen and learn. What are the issues and problems, and how can you best handle them in your answers? After any discussion or distraction, take the opportunity to ask for the question again, so you can listen to it without disruption and with the benefit of having heard the preceding debate.
5) Don’t play games.
Keep it simple, clear and direct. Thinking that you can avoid the tough questions by dancing or fencing with the questioner is arrogant nonsense. Dodging and weaving will only make you look like you’re hiding something and will goad the questioner on to more and tougher questions.
If you can’t give direct, truthful answers to direct questions, don’t say anything. Playing games will only make it worse.
Common witness games include:
• The tense game — “Ask about yesterday, I’ll tell you about today; ask me about today, I’ll tell you about tomorrow.”
We witnessed that game at the highest level when President Clinton gave his first television interview responding to claims that he had an affair with a White House intern. No one claimed the affair was still going on; the question was whether it had ever happened. Yet Clinton repeatedly dodged that question by responding only in the present tense that “there is no” affair.
Although in later statements his denials became clearer, that initial dodge left a sense of dishonesty that was hard to dispel.
• The definition game — “You may think it means this, but I think it means that.”
Again, Clinton gave an example. Asked a question about an “affair” with the young woman, he responded that there was no “improper relationship.” Asked what that meant, he gave no definition.
That may work in a brief sound bite or press conference. Under the glare and repeated questioning of real testimony, however, such a game only leads to trouble.
• The dodge game — “You ask me about this, I’ll tell you about that.”
Like the other games, in the hands of a skilled questioner, this will only make your life as a witness miserable.
All of these games have been tried before. None of them work in the long run. Benefit from the bad experiences of prior game players: Don’t try it. Just answer the question.
6) Don’t get spooked by details.
Many questioners thrive on endless, meaningless details, and witnesses often find it disturbing or distracting. There are lots of different reasons for such detail. Sometimes it has just become part of their routine.
For example, the Securities and Exchange Commission lists in its internal manual for conducting investigations a standard script for all cases, containing an absurd number of detailed background questions — everything from your Social Security number to your home phone number (even when your lawyer is sitting right there, and the SEC knows it would be improper to call you directly).
Because it’s in the script, SEC investigators ask these questions of all kinds of witnesses in all kinds of cases, even when there’s absolutely no reason to go into that kind of detail.
Sometimes the reasons are not just bureaucratic. Perhaps the questioner is flexing his or her muscle by asking seemingly prying questions to emphasize the power to ask, or simply to try to intimidate you. Don’t let the questioner win that game.
Most of the time, the questioner has a wide berth to ask background questions. Even if it’s questionable, often it’s not worth the time and expense to try to block his or her ability to ask. Unless your lawyer objects and instructs you not to answer, don’t worry about it. Just answer the questions.
7) Take the questioner’s frustration as a compliment.
Years ago, I attended my son’s first football game. He played defensive line, did well, won the game. I prepared to congratulate him as he came off the field at the end. But to my surprise, he was very upset. I asked why. “It’s not fair,” he said, “They kept putting two guys on me, and I couldn’t get to the quarterback!”
I smiled and said, “Use your math: both sides only have 11 guys. If they have to put two on you, what does that mean?” He looked a little less upset, and replied, “It means they have one less to stop everyone else?” Yes, it means you’re doing something right. Use their frustration as a compliment, I told him. If they put two guys on you, think to yourself, “Thanks for the compliment, now get out of my way!”
It’s the same for a witness. A prepared and disciplined witness can be very frustrating to an unprepared lawyer. Witnesses often assume that the questioner’s frustration means they’ve done something wrong.
Not so — more often than not, the questioner’s frustration means the witness is doing something right. Don’t change. Use the questioner’s frustration as a compliment. If you were doing something that helped your testimony, keep doing it — and more! You are there to give the truth, the whole truth and nothing but the truth, not to fulfill the questioner’s fantasies.
If you are going to be able to truly “listen, listen, listen,” you need to avoid anything that will make that unnatural discipline even more difficult. You need to keep your cool throughout the process. The more careful and precise you are in listening and answering, the more frustrated the questioner may become.
Remember, though, that nothing the questioner says is evidence unless you agree to it. The questioner’s frustration, whether real or exaggerated, should not push you to agree. Anger and argument will interfere with the work you have to do, so don’t play that game.
Be relentlessly polite.
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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.
