Daniel I. Small, The Daily Record Newswire
In a previous column, I covered Rule No. 5 for witnesses: Don’t answer a question you don’t understand, and the challenge of imposing discipline on the process by responding simply with, “Please rephrase the question.”
This is not a game. Questioners generally are not limited to an arbitrary number of questions, but they must be clear and fair questions.
Every parent knows that when you try to impose rules and discipline on children, they’ll try different ways to wiggle and squirm out from under them. Questioning attorneys are much the same. If a witness imposes the discipline of insisting on clear and fair questions — again, in large part simply by saying, “Please rephrase the question” — the questioner will seek to “wiggle and squirm” out from under and keep doing things his way.
The reality is that, too often, questioners don’t want clear and carefully considered answers to clear and fair questions. They want the careless, thoughtless, stream of consciousness stuff. They want confusion, not clarity, because confusion creates mistakes.
One big difference between imparting wisdom to a witness and imposing discipline on children is that while kids have a seemingly endless variety of wiggles and squirms, the circumstances of a witness’s environment leave the questioner with fewer options — basically, only three.
If a witness is not prepared for these three classic “wiggles and squirms,” he may wonder what he has done wrong. If he is prepared, it makes the task much easier.
1) The court reporter
The most common “wiggle and squirm” is to use the court reporter: The questioner asks a bad question; the witness says, “Please rephrase the question”; and the questioner says, “Would the court reporter please read back the question?”
So far, there’s nothing wrong. On the contrary, it gives everyone a chance to take a breath and listen to the question again. The problem is that, time and again, unprepared witnesses think: “Gee, if the court reporter can read it back, it must be OK.” So they answer the question.
No!
Court reporters are remarkably good at what they do, but they do not edit, modify or otherwise improve the words that come out of the questioner’s mouth. If the question was gibberish, the repeat will be gibberish.
The key is to understand that simply by using the court reporter, the questioner has not done what the witness asked. The questioner was not asked, “Please repeat the poorly worded question”; the request was to rephrase. The witness should not give up or give in.
If the questioner’s response is to have the court reporter mirror back the same bad question, the witness should listen carefully, pause and relay the same reply.
2) The follow-up question
The second classic “wiggle and squirm” is a challenge from the questioner in the form of a follow-up question.
The questioner asks a bad question, to which the witness replies, “Please rephrase the question.” Then the questioner says, “What was wrong with my question?” or “What didn’t you understand about my question?” (The latter is often accompanied by an unspoken, “You idiot!”)
The questioner has now posed a new, follow-up question, and we need to consider the options for responding.
There will be occasions when the question is short and clear enough that the witness can easily identify a word or phrase that troubled him and can respond simply, such as: “I’m not sure what you meant by [word].” However, the ability to be that precise and limited in finding a question’s flaws is surprisingly rare.
Keep it simple. The truth is that most bad questions are bad, at least in part, because they are too long. When I teach lawyers how to try cases, I always warn them not to ask questions more than six to eight words long (try it — it’s very short). Longer than that, the question is bound to be compound, confusing and vague. Break it up into four or five short questions.
The same discipline should hold for a witness: Give the questioner the benefit of a few extra words, but if a question is more than eight to 10 words long (still pretty short), alarms should go off. The witness shouldn’t answer it. It’s likely neither clear nor fair, and is almost certain to contain assumptions, multiple questions, language issues or more problems.
No witness can keep track of the whole thing, so the majority of the time the best, most truthful and easiest response to the follow-up question is, quite simply, “It’s just too long and confusing. Can you break it up for me?” That’s all. End of dialogue. It’s just too long.
3) The obstinate child
You’ve seen that kid in the corner, stamping his feet in frustration, screaming, “No, no, no, I won’t!”
Here’s the lawyer’s version: The questioner asks a bad question; the witness says, “Please rephrase the question.” The questioner says, “No, that’s the best I can do,” or “No, I think it’s straightforward.” Sadly, I read transcripts all the time in which unprepared witnesses obviously think, “Well, if that’s the best he can do, I guess I have to answer it.” And away they go.
If that’s the best he can do, too bad!
It’s the witness’s testimony, not the lawyer’s. Questions have to be clear and fair to the witness, not the questioner. Why should attorneys’ opinions of their own questions matter at all? Here, again, the questioner has created a problem with a bad question and done nothing to fix it.
The witness shouldn’t answer it. The obstinate child should be treated as such — gently, but firmly. The witness should say, “I’m sorry. I still don’t understand. Why don’t you ask another question?”
The wiggles and squirms are simple and silly, but also too often are effective on an unprepared witness. Don’t fall for them. The great Spanish novelist Miguel de Cervantes said: “Forewarned, forearmed; to be prepared is half the victory.”
The more witnesses know what’s coming, the better they’re able to deal with it. Teach the discipline and the response.
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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.
