Daniel I. Small, The Daily Record Newswire
In the futuristic movie “I Robot,” Will Smith’s detective speaks to a computer-generated hologram of the scientist whose death he is investigating. When the detective’s questions veer off from being clear and simple, the hologram intones, “I’m sorry, my responses are limited. You must ask the right questions.”
Real witnesses, even more than holograms, have both a right and a responsibility to insist on clear and fair questions.
In a casual conversation, it’s common for one person not to understand fully or with certainty what another is asking, but it’s also unimportant. Questions often are not really questions in a conversation; they’re more like prompts to move it in a desired direction. The conversation flows along in that new direction, and if the person who asked the question cares, he or she can bring it back by asking the question again, or in some other form. You would never be so blunt as to simply say, “Please rephrase the question,” and simply stop. Precision is not the point, and if it gets in the way of the conversation’s flow, it loses every time.
By contrast, should you find yourself in the unnatural environment of being a witness, precision is crucial. When everything that’s said is being taken down, under oath, and picked apart, the question becomes part of the answer. When you answer a question, it will be assumed that you understood the question and that you agree with anything in the question that you do not clearly dispute. If you later get a chance to review a transcript, you will be amazed at how many questions were really unclear or misunderstood. However, by the time you read the transcript, it’s too late.
The key is control. You are the witness. This is your statement. You have a right to clear, simple questions and to only answer questions you understand. Otherwise, don’t answer. Just say, “Please rephrase the question,” and stop — nothing more.
There is no limit to how many times you can ask until you get a question you understand. Do not offer to get into a discussion over what you didn’t get, and don’t help the questioner by saying, “Do you mean X or do you mean Y?” He or she may have meant Z, and now you’ll be asked all three questions!
The only exception is if the question is clear but the context is not: What time frame are we talking about? Which person are we talking about? What location are we talking about? In those types of instances, it may be reasonable, depending on what you and your lawyer agree upon, to ask for the context, not just a rephrasing.
A dirty little secret of the legal profession is that this discipline really works. Witnesses complain to me all the time: “That’s not going to work. He’s just going to ask the same question again.” But even if he does, so what? What has the witness lost? However, in an extraordinary percentage of times, those four magic words — “Please rephrase the question” — will work.
Why? For any number of reasons. Perhaps the questioner was trying to pull a fast one and has been caught, forced to go back and ask a clearer or fairer question. Or maybe the questioner made a mistake — the words simply came out wrong. It could be that the questioner doesn’t even remember what was asked, and now has to try something else. Whatever the reason, with your simple request, you often get a clearer and fairer question. Stick to your guns.
Taking your time becomes particularly important here. To fully understand a question, a witness must apply three tests: clarity, comprehension and comfort. Until a question has passed all three of the tests, don’t answer it!
Clarity
Clarity means only one thing: whether the wording of the question was clear to you. It doesn’t matter whether it would have been clear to someone else. It doesn’t matter whether the questioner thought it was clear, or why it wasn’t clear. Even the best questioners phrase things badly, and even the best witnesses get distracted or confused.
You know from your own experiences that even when you know what you want to say, the words sometimes don’t come out right. The more you’re talking and the harder you’re thinking, the more often this will happen. Now imagine having to think up and ask questions for hours or days at a time. Sometimes it’s a wonder that anything comes out straight. Do not be surprised or feel uncomfortable if some of the questions don’t come out clearly. Just don’t answer them.
Sometimes a questioner won’t realize, or will pretend not to realize, that a question was not clear. That’s not your problem. It doesn’t matter whose “fault” it was; all that matters is that it was not clear to you. Keep asking that it be rephrased until it’s clear. If the questioner acts surprised or irritated, don’t be intimidated — you have done nothing wrong. Keep your cool in demanding simple, clear questions.
Comprehension
Even if you clearly heard the words, do you really understand what’s being asked? That doesn’t mean you think you understand what they might be asking or what you were afraid they would ask — just whether you understand the narrow question that came out of the examiner’s mouth and will now appear in the transcript or other record. Nothing else matters at that moment.
To focus so completely on one question is unnatural and difficult work. Do you really know what the questioner means by every word or phrase? Is the question short and clear enough to make that possible? Our natural tendency is to focus on the gist, the global direction, of a question. In this unnatural environment, it’s the actual words that matter most, not the gist.
Take each question, one at a time. Listen only to what it is, and then ask yourself if it makes sense. If it doesn’t, don’t answer it. If you do understand it, answer it simply, then stop and wait for the next question.
Comfort
So the words seem clear and the question is comprehensible. But are you comfortable with what it contains, or the way it’s being asked? The most common source of problems here comes from the assumptions that are contained in the question.
The classic example many lawyers use is the witness who is asked the “yes or no” question: “Have you stopped beating your wife?” A simple question on its face, but by asking if you’ve “stopped,” the question assumes that you “started.” You can’t answer the question without essentially agreeing that you’ve been beating your wife.
Almost all questions contain assumptions. Think about something as basic as: “Isn’t it true that it’s a nice, warm Thursday today?” A seemingly simple question, yet filled with assumptions. Some are obvious: If today isn’t Thursday, the problem is so apparent that even in casual conversation you might stop the flow to correct the date. Then again, if the main topic of casual conversation is the weather, or something related to it, like, “What are we going to do today?” then you might not catch the irrelevant error, or catch it but choose not to correct it. After all, who cares? You know what day it is. Yet in the formal world of a witness, by not correcting it, you would have agreed with — and thus adopted as your own — a false statement.
The problem gets worse when the assumptions get more subjective. For example, in the same simple question, what does “warm” mean? If I use that word with people in Florida, it means one thing, but with people in Alaska it may mean something very different.
In a casual conversation, no one is being that precise; everyone generally understands the context, and even if there is any misunderstanding, it doesn’t really matter. Here again, a witness does not have those luxuries. If you accept someone else’s assumptions, you have put your word, and your future, behind a statement you may not understand or agree with.
The solution is simple: If a question contains assumptions that you either don’t understand or don’t agree with, or just aren’t comfortable with, don’t answer it. Either ask that it be rephrased or directly challenge the false assumption. That’s questioning the questioner. It enhances a witness’s stature as the one in control and derails poor questions. For example:
Q: Isn’t it true that it’s a nice, warm Thursday today?
A: Would you please rephrase the question?
Q: Isn’t it a warm Thursday?
A: I’m sorry, but I don’t think it’s Thursday today.
Q: Oh, well, it is a warm day today, isn’t it?
A: Would you please rephrase the question?
Q: Do you know what the temperature is outside now?
A: No.
In this overly simple example, the path to comfort may seem extreme, but the discipline of insisting on it is terribly important. Remember, this is your statement, and you have a right to insist on questions you can understand, whether or not it gives the questioner what he or she wants. “What’s the temperature?” is a question you can be comfortable with, whether or not you know the answer. “Nice” and “warm” in this artificially precise environment are not comfortable assumptions.
Yes or no
The other part of “comfort” is that you must be equally comfortable with your answer. The great mathematician Pythagoras said, “The oldest, shortest words, ‘yes’ and ‘no,’ are those which require the most thought.”
Those words carry important wisdom for every witness. Despite the examiner’s wishes, many questions cannot be answered simply “yes” or “no.” Listen carefully to the question, think about the assumptions it contains, and if you have any uncertainty, do not give a simple “yes” or “no” answer. Ask that it be rephrased, and if that doesn’t work, challenge the yes-or-no assumption: “I’m sorry, but I can’t answer that with just a ‘yes’ or ‘no.’”
There are as many reasons why you might not understand a question as there are possible questions. We have only discussed some of the more common problems. The point is that it doesn’t matter why or how you don’t understand. The process is too important and precise to fudge by answering a question you don’t understand. Don’t do it.
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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.
