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 by Daniel I. Small

Question. Pause. Answer. Stop. That is the unnatural, but essential, rhythm of an effective witness. We’ve talked about each of these first three steps, now we must talk about the “stop.” Don’t volunteer. Like so much of being a witness, this is contrary to what we are used to — and what our goal is — in a free-flowing conversation.

The essence of conversation is connections. One thought leads to another, and the conversation flows. Depending on the setting and the people, it can meander slowly for hours or flow swiftly to a conclusion, but always by means of connections. If you are chatting over lunch and your companion asks if you saw a recent movie, your response will probably not be a simple yes or no. Rather, you will go on to talk about whatever interests you that’s connected to the original question or whatever follows:

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 some day.

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, one subject to another. 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 all right.

In the unnatural world of being a witness, connections are not the goal. Your job as a witness is generally to insist on clear and fair questions, answer carefully, briefly, and precisely, and then go home. Question. Pause. Answer. Stop. 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 put words in your mouth. Nor should it be your job to volunteer information beyond the narrow lines of the question.

Connections mean you are volunteering. Don’t do it. You may think that it will somehow help or shorten your time as a witness, but it will not. Wait for a clear and simple question, keep your answer as short, simple, and narrow as possible, and then stop. If a questioner does not follow up with more questions, and thereby misses other information, that’s not your problem. Your volunteered addition may be inadmissible, irrelevant, or just off track.

Think about what this same movie discussion might look like with a careful witness who does not volunteer:

Q: Did you see movie X with actor Smith?
A: Yes.
Q: Did you like it?
A: Yes.
Q: Have you seen any other movies with actor Smith?
A: Yes.
Q: Which ones?
A: Movie Y.
Q: Which movie did you like better, X or Y?
A: I’m not sure.

And so on. Each question is answered truthfully, but you have not done the questioner’s job for him or her. You have not volunteered. You have broken the chain of connections. Question. Pause. Answer. Stop.

There are no shortcuts here. Answer each question at its most basic level. Do not try to help the process along or anticipate where it might be going. Too often that means going off that straight and narrow path forward. Those kinds of sidesteps can take much more time in the long run and greatly add to the difficulty of being a witness. Your 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 Securities and Exchange Commission (SEC). Through a long day of questioning, he did an excellent job of listening carefully and keeping his answers precise and simple. Finally, late in the afternoon, he faltered. He answered a question and stopped, but then thought of something connected to his answer that he wanted to say.

The SEC lawyer, tired of having to deal with a careful witness, picked up on his hesitation and pushed him to say more. Although it was actually an insignificant point, the questioner was so intent on pursuing something that came out spontaneously that we ended up going on and on about this 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 okay. This is a hard adjustment. In our normal lives, silence between people in a conversation makes us uncomfortable, and we try to fill in the gaps. We all know viscerally what “uncomfortable silence” is. We don’t like it. Experienced questioners know this. They know that by playing off that natural discomfort, silence can be an effective tool. A questioner may use silence by simply waiting at the end of your answer, as if surely you cannot be finished, surely there is more. Don’t play that game. Answer the question, then stop and wait for the next question. 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 witness and the questioner are not communicating and are becoming bogged down because of a 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 you as a witness may wish to convey. The more involved a witness is with the matter, particularly as a party, the more important these themes become. If witness and lawyer agree on these themes, they may also want to think about whether and when you want to go beyond the simple answer to a question and volunteer information to support it.

Testimony is serious business. Everyone in the room has a job to do. Many of these rules are aimed at disciplining the questioner to do his job right: to make him or her ask clear and fair questions. Rule 8 is aimed at disciplining the witness to do their job right: answer the question, then stop. 

To read earlier installments in Dan's series on powerful witness preparation, follow the links below:

Introduction: "You Guys Were Much Tougher"

Rule #1: "Take your time"

Rule #2: "Making a Record"

Rule #3: "Tell the Truth" 

Rule #4: "Be Relentlessly Positive"

Rule #5 Part I: "Don't Answer a Question You Don't Understand"

Rule #5 Part II: "Common  Wiggles and Squirms"

Rule #6: If You Don't Remember, Say So

Rule #7: Don't Guess

This article is the tenth in a series written by Daniel I. Small for
The Professional Education Group.
To book Dan for a live seminar please call 800.229.CLE1 (2531).
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