By Daniel I. Small
The Daily Record Newswire
No matter how much time is spent in preparation, there is often still a lot a witness’s lawyer can do to help while the witness is being questioned.
A good lawyer will do everything appropriate to provide that assistance. So when a senator tried to keep lawyer Brendan Sullivan from talking too much during the Iran-Contra hearings, he countered, “Senator, I am not a potted plant!” He apparently received potted plants in the mail from appreciative trial attorneys around the country, and the phrase became a symbol for lawyers actively representing witnesses.
A witness’s lawyer can help his client in a variety of ways at each stage of the process. Although there are differences depending on the type of questioning or proceeding, the types of help may include the following:
1) Privilege
Both lawyer and witness should be clear up front about what their relationship is. I learned that early as a federal prosecutor. “The People” were my client, but I had no attorney-client relationship (or privilege) with any witness.
If the lawyer does represent the witness, then both have to be vigilant to protect the privilege. Privilege issues fill volumes of case law and analysis. It can be confusing. When in doubt, a witness needs to stop and ask.
One common area for which it’s important to prepare is questions about the preparation process itself. Preparation with a witness’s own counsel is strictly privileged and confidential. However, many questioners will ask about the logistics of the preparation: who, when, where, etc. That’s fine, and no witness should feel defensive about having prepared for this important event. But be careful about opening the door to privileged communications. What was said remains strictly off-limits, or the questioner may claim that the privilege has been waived.
If the witness is not a direct client, that should not deter preparation. Just prepare your witnesses so they know that opposing counsel may ask about the conferences, then conduct the conference accordingly.
Preparation is about seeking the truth (“I’m not here to tell you what to say; all I want is to learn the truth. If I say anything that’s not right, please correct me. I want you to be comfortable, if anyone asks you what I told you to say, that I just told you to tell the truth.”) and asking questions (“We’re trying to get at the truth here, so I have a lot of questions to ask, some of which they may ask, and documents to show you and ask you about, that they may show you as well. Would that help you?”).
2) Breaks
Being a disciplined witness is surprisingly exhausting mentally. There are many things we do in our normal lives that are more exhausting in short spurts, but few that require the unrelenting intensity and focus of being a witness. What that means is that this is a marathon, not a sprint, and the witness has to prepare himself accordingly.
Have your witnesses take breaks, early and often, for any reason or no specific reason. The challenge for witnesses is to know themselves well enough to take breaks before they really need them, not four or five questions after they lose focus.
In addition to combating exhaustion and distraction, breaks can be important for other reasons. One of those is the assistance of counsel. A witness’s lawyer is the only “friend” in the room, no matter how friendly others may seem. If the type of proceeding and local rules allow it, a witness should break to talk to counsel for whatever reason, and however often — whatever a questioner might say, it does not “look bad” on the record and it will not reflect badly on testimony.
Sounds easy, but in some cases it may feel uncomfortable. After all, in a normal conversation, one doesn’t usually get up and walk out of the room to talk to someone else, then come back. It stops the flow, people look at you funny, and you feel self-conscious.
Too bad. A witness is involved in an unnatural process. Having the regular opportunity to take a break and to confer with counsel is far more important than any minor feelings of discomfort.
3) Objections
If you find yourself in a proceeding during which counsel makes objections, do not make the mistake of treating them as irrelevant legal technicalities. If you see a lawyer getting up to object, stop and wait. Listen closely to any objection and response and consider it carefully. You may learn something important about the question and how it could be handled from the objection.
In a deposition, the rules that govern counsel in most jurisdictions prevent objections that go to the substance of the testimony: hearsay, relevance, best evidence, etc., as a deposition is supposed to be a far-ranging discovery process. There’s no judge to rule on objections and no jury to hear objectionable testimony; it can be dealt with later, before the case goes to trial.
The principal exception is “objection to form” (lawyers can be as lazy as any other human being, and may shorten these three words to simply “objection,” or even just “form,” but the intent is the same).
The problem is that when most unprepared witnesses hear one or more of those three words, “objection to form,” they assume that it is some technical legal nonsense that they can ignore. So they plow forward, undaunted by the objection.
Alas, they are only half right. There are technical legal reasons for objections to form. However, the more important half is that counsel has heard something about the question to which he objects. “Objection to form” is shorthand for “I have an objection to the form in which that question was asked.” If counsel has that kind of a problem with a question, maybe the witness should, too, and ask to have it rephrased.
It’s important to understand that an objection is generally not an instruction not to answer. There are only a few areas in a deposition in which counsel can give such an instruction. In the Federal Rules of Civil Procedure, for example, they are defined as follows:
FCRCP, Rule 39(c)(2): “Counsel may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court or to present a motion …”
Thus, the witness must generally answer the question, despite the objection. However, “please rephrase the question” is an appropriate answer to a bad question.
In a complex contracts dispute between two health care systems whose cooperative effort had turned into finger-pointing, the top executive of the joint venture was called for deposition. He was an intelligent, articulate administrator who during preparation, typical of that kind of successful person, had a hard time understanding why he had to slow down, listen and insist on clear questions. It took a good deal of work to persuade him, but he finally got it.
The questioning lawyer was talented and experienced, but, like most lawyers, spoiled by years of questioning poorly prepared witnesses who did not challenge bad questions. As a result, he repeatedly asked questions that were too lazy, too complex or too confusing.
I objected to form, and my witness asked to have the questions rephrased.
Unable to have his way with the witness for a change, the questioner became more and more frustrated. Finally, he asked yet another bad question, I made yet another objection to form, my witness yet again asked to have the question rephrased, and the lawyer could no longer contain himself:
A. Please rephrase the question.
Q. You don’t have to do that, you know!
(pause)
A. Do what, counselor?
Q. Just because your lawyer objects to form, you don’t have to ask me to rephrase the question!
(pause)
A. I know, but it does kind of raise a red flag, doesn’t it?
(laughter)
Exactly right. Whatever the other technical legal meanings of “objection to form,” it is also a bright red flag that there are problems with the question. There is nothing automatic or universal here, and maybe counsel has not heard the question right or misjudged it — but maybe not.
4) Errata sheets
In a deposition or other form of testimony, where the witness and counsel have the opportunity to review the transcript and submit an errata sheet, too many lawyers treat the process as a trivial chore.
It should instead be viewed as an important opportunity to continue the dialogue with your witness. Ask him to review it, with three things in mind: (a) typos and other errors; (b) points that, in 20-20 hindsight, he got wrong or simply wishes he had said differently; and (c) issues or questions that reading the transcript raises in his mind. Then take the time to go through all those things with the witness.
I am a believer in being aggressive about errata sheets — better to clarify something now than have to deal with it down the road. There is some disagreement among jurisdictions, but the majority rule is that it is permissible to make substantive changes in an errata sheet. See, e.g., Smaland v. Genova (2011).
The process is not without risks. Among other things, if the changes are too great, the other side may seek to re-open the testimony. Still, the benefits of a clear record generally outweigh the risks.
A witness will hopefully spend a great deal of time and effort working with counsel before questioning. Counsel, in turn, has a great deal of experience dealing with the environment. Use that crucial combination of effort and experience at every stage of the process.
—————
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.
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