Daniel I. Small, The Daily Record Newswire
Question. Pause. Answer. Stop.
That’s the unnatural rhythm of the witness environment. In past columns, I’ve talked about rules for witnesses for the first three steps:
Question: Don’t answer a question you don’t understand.
Pause: Count to five after each question.
Answer: Don’t guess.
Now we talk about the stop. It’s something else about being a witness that most people are not prepared for: silence. In a conversation, we are used to filling the silences.
Everyone is familiar with an “uncomfortable silence,” and we all try to avoid it. Witnesses have to be prepared to answer and then stop. Don’t volunteer. Don’t fill the silences.
This is unnatural in several respects. The essence of conversation is connections. One thought leads to another and the conversation flows. If you’re chatting over lunch and your companion asks if you saw a recent movie, your response is probably not a simple “yes” or “no.” Rather, you go on to talk about whether you liked it, or who you saw it with, or what other movies you’ve seen with the same actor or actress, or whatever interests you.
Think about how a conversation like that might go:
Q: Did you see movie X with actor Smith?
A: Yes, but you know I really liked him better in movie Y. The acting was better. Of course, it may just be that the night I saw that movie was really memorable, since Mark almost got arrested on the way home. The movie went longer than we thought, so he was really speeding on the way home and saw this police car just in time. He’s such a crazy driver; I’m really worried he’s going to get in an accident someday.
And so on. A conversation that started with a simple question about movie X has quickly flowed along to Mark the dangerous driver, through a series of understandable connections.
No one asked about Mark, or even movie Y. But in a conversation, that kind of volunteering is all right. As a witness, it is not.
In the unnatural question-and-answer world of a witness, connections are not the goal. The job of a witness is generally to answer the questions carefully, briefly and precisely — and then go home.
The questioner’s job is to ask the right questions to get at the information he or she wants. It should not be the questioner’s job to help answer the questions by trying to put words in the witness’s mouth. Nor should it be the witness’s job to help the questioner ask better questions or to volunteer information beyond the narrow lines of the question.
Connections mean a witness is volunteering. He shouldn’t do it. He may think that it will somehow help or shorten his time as a witness, but it will not. He should wait for a clear and simple question, keep his answer as short, simple and narrow as possible, then stop. If a questioner does not follow up with more questions and thereby misses other information, that’s not the witness’s problem. His volunteered addition may be inadmissible, irrelevant or just off track. He has not limited the number of questions the lawyer can ask, and he does not need to volunteer something that was not asked.
There are no “shortcuts” here. Answer each question at its most basic level. Move forward in small, easy steps. Do not try to help the process along or anticipate where it might be going. Those kinds of sidesteps can take much more time in the long run and greatly add to the difficulty of being a witness. The goal should be to give the questioner nowhere to go but forward, toward the end.
Some time ago, I represented an investment manager in testimony before the U.S. Securities and Exchange Commission. Throughout a long day of questioning, he did an excellent job of listening carefully and keeping his answers precise and simple. It was hard work, and it went against his talkative nature.
Finally, late in the afternoon, he faltered. He answered a question completely, stopped, then thought of something related to the question that he wanted to say. Like the movie example, he answered the question about movie X, but his mind made a connection to movie Y.
The good news was that as he started to say something else, he remembered the rule, caught himself and stopped. The bad news was that the SEC lawyer, tired of having to deal with a careful witness, picked up on his hesitation and pushed him to say what he had started.
Before I could remind him that he had already answered the question, he was off on this tangent. Although it was actually an insignificant matter, the questioner was so intent on pursuing something that came out spontaneously that we ended up going on and on about the new topic for half an hour before it petered out and we got back to the original line of questions.
When we went out for the next break, my client looked at me sheepishly and said, “You don’t have to say anything; I know what I did wrong.” In an effort to help things along, he had only added to the process. His “shortcut” had wasted half an hour that would have been saved by silence.
Not volunteering means realizing that silence is OK. It’s a hard adjustment. We don’t like it. Experienced questioners know that. They know that silence can be a very effective tool, and they play off of that natural discomfort.
A questioner may use silence by simply waiting at the end of the witness’s answer, as if surely he cannot be finished.
The witness shouldn’t play that game. He should answer the question simply, then stop and wait for the next question. He should use the silence to prepare for what is ahead, not to volunteer more of what has passed.
There are two general exceptions to “do not volunteer” that a witness and his or her lawyer might want to discuss. The first is the “simple misunderstanding” exception. If the questioner and witness are not communicating and becoming bogged down because of a clear and simple misunderstanding over a basic fact, it may be worthwhile to volunteer to correct the error.
The second exception is for “core themes.” Every matter has a few key themes that a witness may wish to get across. The more involved a witness is with the matter, particularly as a party, the more important the themes become. If witness and lawyer agree on the themes, the two may also want to think about whether and when the witness wants to go beyond the simple answer to a question and volunteer information to support it.
If a witness is hit with a flash of insight or recollection while answering questions and it has not been previously discussed with counsel, he should keep it to himself, if possible, until he has had an opportunity to go over it with counsel, perhaps during a break. Counsel should not be caught unprepared.
Sometimes a questioner will surprise a witness by asking him to agree to supply documents or information. The witness should not agree to any such request on the spot; instead, he should refer it to counsel. He or she can more easily judge if responding to such a request is appropriate or advisable. Counsel can either respond directly to the request or agree to take it under advisement and give an answer later.
Question. Pause. Answer. Stop. Practice the stop and practice silence. Don’t volunteer.
—————
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.
