By Melissa M. Gomez
Special to the Legal
I have heard it said that there are only four good answers a witness can give in a deposition: “Yes,” “No,” “I don’t know,” and “I don’t remember.” I wholeheartedly disagree with this strategy.
Instructing a witness essentially not to provide any real answers to adverse questions can backfire in multiple ways, not the least of which is the fact that this advice essentially lets opposing counsel testify for our witnesses on the record. Think of it this way: When you read a deposition and the answers only confirm or deny the question, the content of that deposition is coming from the question. The question becomes the evidence. The wording of the question comes from the other side.
So the conundrum is clear: How do we get our witnesses to answer a question and nothing but the question, but still ensure that the language on the record comes from the right side of the case? The answer is one of balance.
I was recently working with some witnesses in a commercial case involving the privatization of a publicly traded company. The witnesses were very intelligent, high-powered people and they were fish out of water in the context of giving testimony. The group of them fell relatively evenly on the poles of the testimony spectrum. Specifically, some would flatly say yes to any question that had an element of truth in them, even if the context of the question was completely off base. Others went off on tangents, engaging in debates and working hard to convince opposing counsel he was wrong. I had my work cut out for me.
While the testifying tendencies of these witnesses were disparate, the foundation behind the preparation was the same. Specifically, there is a balance that every witness needs to understand how to strike. That balance is to find the sweet spot between one-word answers and dissertations of gratuitous information.
The key to this balance is threefold: First, understand the difference between answering and explaining. Second, know that rules are meant to be broken. Third, pick your battles. A witness who is grounded in these three things is on the road to being well prepared.
The first point: Understanding the difference between answering and explaining. There is a difference between adding context and providing an explanation. The first is helpful during cross-examination or deposition; the second is not. Take the following question, for example, in the investment case I referred to:
Question: “Would you agree with me that despite the fact that you were more profitable in 2008 than 2007, you represented to investors a poorer financial report in 2008?”
Explanation: “Well, in 2008, the United States was facing financial difficulties as a result of a crash in the real estate market. The result of that crash affected the entire economy of the country, including the businesses that resided within it…”
Answer: “While we did bring in more profits in 2008 than 2007, that increased profitability was not able to overcome the economic crash of that year; therefore, we did have a poorer financial report, which we communicated to the investors.”
Both answers tell the correct story. But only one begins and ends with an answer to the question as opposed to telling what sounds like an evasive side story.
The second point: Rules are meant to be broken. I have noticed that there are times when I give advice to witnesses and they, so eager for the help, take that advice to be absolute and applicable in every situation. For example, as I typically do, I instructed a witness in a different case to make sure to look at his jury in efforts to develop rapport. During practice cross, he didn’t even glance toward the attorney asking him questions. Instead, he kept staring at me, as I was filling in as his mock juror. I had to explain to him that addressing the jurors does not mean ignoring the questioner or staring the jury down. If it doesn’t feel natural, it doesn’t look natural.
No strategy or rule is absolute. They are tools to be pulled out of the toolbox when they apply. Good preparation is helping witnesses use their good judgment to know when to use a strategy and when to let it go.
Which brings us to the third point: Know when to choose your battles. It can be unhelpful and awkward to restate every single question in a cross-examination or deposition. So, when do you break the rule of making sure the language on the record is your own? When the correct answer really is yes or no or when the subject matter of the question is simply not an important topic to the case.
I have found that with the proper contextual application, most witnesses can understand the middle ground and apply it. In our commercial case described above, this framework brought the witnesses on both ends of the spectrum into that helpful sweet spot. They did a great job. And their testimony stood on its own.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at [email protected] or call 215-292-7956.
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