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by Daniel I. Small

Almost every case has documents, and questioning lawyers love them. They can hold them, read them, wave them around, slap them down in front of a witness. All of that often has the desired effect on unprepared witnesses: intimidation and surrender. And why not: we all place certain magic into documents: "If it's written, it must be true!" Real witness preparation means confronting the challenge of taking the magic out of documents.

ISSUES

WITH ANY DOCUMENT, THERE ARE three basic issues: Credibility, Language and Context.

Credibility—Does the witness know whether or not the document is accurate? If you don't know, don't assume anything! No document can change your reality. Documents are just mechanical ways of putting what we think on paper, and they are only as accurate as the knowledge, or bias, or beliefs of the writer.

I learned this lesson vividly from the January, 2006 West Virginia mining disaster. I was traveling, and working late to get ready to meet with a witness and counsel the next morning. I had the TV on in the background, and heard something about miners being trapped. The next morning, I was running late, so did not listen to the radio or watch TV. However, as I left my hotel room, there was a copy of USA Today on my doorstep, with the dramatic headline, "12 Miners Found Alive." Walking into my meeting, I exclaimed to all, "Wow, great news about those miners!"

Except that it wasn't true, and everyone else in the room knew it. For a brief period late that night, that happened to coincide with the deadline for USA Today's hotel edition, there was a report that they were alive. By the time everyone else got later newspaper editions, or TV or radio news that morning, it was clear that it wasn't true. The dramatic headline was a false report, a mistake. All the miners were dead.

I have kept that headline and shown it to virtually every witness I have worked with since. Email me, and I'll send it to you, too. There it is, an impressive document. No one was trying to lie or deceive: on the contrary, they thought they were sharing wonderful news. And yet it is false. A document is just a mechanical way of writing down what someone believed at the moment. It cannot change reality. I show that headline to every witness in the hope that they will think of it every time they are shown a document, and ask, first, "Do I know whether this is credible?"

Language—Language means just that: is the questioner quoting the document accurately: the exact words, the full sentence or paragraph, the question being answered.

Context—Even if the questioner quoted the language correctly, did he or she put it in the correct context. What else does the document say on this subject?

PROCESS

The goal is to level the playing field, since the questioner knows what portions of what documents he or she will use and has studied and prepared in advance. The key is to learn a process and discipline that allows you to take your time, consider the whole context, and answer precisely. There is a very simple, absolute, three-step protocol for dealing with any document. Learn this very simple process, and then follow it absolutely with every document or statement.

The Protocol: Anytime you are asked a question the answer to which is contained in or relates to a document:

Step I: Ask to See It
If you are asked a question about a document (or about something that is contained in a document), the first step is to ask to see it. Do not assume someone else's description is accurate, and don't guess about what it says. I am constantly amazed at how often witnesses-and their counsel-allow themselves to be drawn into a debate with a document that is not in front of them. How absurd, and unfair. How can the witness possibly win that debate? They cannot. The best they can do is "tie," and eventually lose. Do not get drawn into such a debate. Ask to see the document!

Understand that in many forums, the questioner is not required to show the witness a document. However, if the questioner chooses not to show you the document, he or she has chosen to allow you to guess: because that is the most you can do regarding a document that is not in front of you.

Step 2: Read It
If you are allowed to see a document, pick it up, block out everything else in your mind, and examine the document as if it were your first time. Read the entire document carefully, no matter how long it takes, and regardless of whether you saw it in preparation for your testimony.

a. It is generally none of the questioner's business what you did in preparation, and if you prepared with your own lawyer, your discussions were privileged and confidential;
b. Every time you read a document, you will see something new, something you missed before, so it's always worthwhile to read it again; and
c. You are now reading the document with the advantage of having heard some of the questions.

Understand that some questioners will try to discourage such a thorough review. Remember, this is your testimony. You have the right and the responsibility to be in control, and you have a right to clear and fair questions. Picking a piece of a document out of context is not fair, at least until you have reviewed and considered the entire document (or set of documents). Once you have done this, you may wish to consult with your lawyer if it is appropriate, particularly if reading the document raises or reminds you of any new issues.

Step 3: Ask for the Question Again
Once you have given the whole document(s) careful consideration, put it down, and ask to have the question again. Now you can focus not just on the words the questioner may have picked out, but on the whole portion of the document(s) related to that issue. Try to understand both the language and the context. What has the questioner missed, or left out?

Discussion

Once you've read the document, the first issue is who wrote it. This may be clear from looking at the document (for example, handwriting or signature) or you may know from some other source. If you did not write the document, there is very little you can say about it that's not guessing. What is it that you saw, heard, or did? If you remember reading it, you saw something. If you remember discussing it, you heard something. If you took some action as a result, you did something. Anything else (who wrote it, why it was written, what it means, and so on) is guessing. Don't do it.

One frequent issue involves documents that were written by someone else, but indicate in some way that they were sent to you. You can only testify from your current memory—and it's your memory, not a "cc" mark on someone else's document, that controls what you can say. The "cc" may have been carried out, or it may not have been; it doesn't matter. If you now remember receiving the document, you can say that. Otherwise, never allow someone to push you into an assumption like "I must have seen it, because I'm cc'd." If you don't recall receiving it, just say so.

Even if you did write it, what you can say may still be limited. How much, if anything, do you truly remember about it? A document that may be important to a questioner now may have been unimportant to you when you wrote it months or years ago, and little more than a blur to you now. That may not be what the questioner wants to hear, but it's the truth. Be careful with documents.

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

Rule #8: Don't Volunteer 

This article is the 11th 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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