Read more about Dan. 

 by Daniel I. Small

In last month’s article, Don't Answer a Question You Don't Understand, we talked about teaching witnesses to impose the discipline of not answering a question they don’t understand; just say, “Please rephrase the question.” It is tough, but essential, discipline for any good witness. Now the challenge is what happens next.

A dirty little secret of the legal profession is that asking "Please rephrase the question," really works. Witnesses say all the time, “That is not going to work. He is just going to ask the same question again.” If he does, so what? What has the witness lost? However, in an extraordinary percentage of times, the four magic words “Please rephrase the question” work. Why? For a number of reasons, including:

1. The questioner was trying to pull a fast one, and now they’ve been caught;
2. The questioner made a mistake; and
3. The questioner has no memory of it, and now they have to try something else.

Whatever the reason, with this simple request you often get a clear and fair question.

Precisely because this discipline does work, lawyers will go to great lengths to avoid it. It’s important for witnesses to be prepared on how some lawyers will do it.

Every parent knows that when you try to impose rules and discipline on children, they will try different ways to wiggle and squirm out from under them. Questioning attorneys are much the same. If a witness imposes the discipline of insisting on clear, fair questions, of saying “please rephrase the question,” questioning attorneys will seek to “wiggle and squirm” out from under, and keep doing things their way. One big difference, however, is that while children have a seemingly endless variety of wiggles and squirms, the circumstances of a witness environment leave the questioner with fewer options; basically only three.

1. The Court Reporter

The most common “wiggle and squirm” is to use the court reporter. The questioner asks a bad question, the witness says, “Please rephrase the question,” the questioner says, “Would the court reporter please read back the question.” There’s nothing wrong with this; on the contrary, it gives everyone a chance to take a breath and listen to the question again. The problem is that, time and again, unprepared witnesses think: “Gee, if the court reporter can read it back, it must be okay.” No! Court reporters are remarkably good at what they do; they do not edit, modify or do anything to improve the words that come out of the questioner’s mouth. If the question was gibberish, the repeat will be gibberish.

More importantly, the questioner has not done what the witness asked. The questioner was not asked, “Please repeat that bad question.” The request was “Please rephrase.” Don’t give up, and don’t give in. If the questioner’s response is to have the court reporter mirror back the same bad question, all the witness should do is to mirror back the same reply: listen, pause and then say, “Please rephrase the question.”

2. The Follow-Up Question

The second classic “wiggle and squirm” is a challenge from the questioner, in the form of a follow-up question. The questioner asks a bad question, the witness says, “Please rephrase the question,” and the questioner says, “What was wrong with my question?” or “What didn’t you understand about my question?”

The questioner has now posed a new question — a follow-up — and we need to consider the options for responding. There will be questions where the witness can easily identify a word or phrase that troubled him, and can respond simply, “I’m not sure what you meant by _________.”

However, the ability to be that precise, and limited, in finding a question’s flaws is surprisingly rare. Keep it simple. The truth is that most bad questions are bad because, at least in part, they are too long. When I teach lawyers how to try cases, I always warn them not to ask questions that are more than six to eight words in length. (Which if you try it, is very short.) Any longer and the question is bound to be compound, confusing and vague.

The flip side is equally true for witnesses: give the questioner the benefit of a few extra words, if you want, but if a question is more than eight to 10 words in length (still pretty short), alarms should go off. Don’t answer it. It is likely neither clear nor fair. No witness can keep track of the whole thing. So the majority of the time, the best, most truthful and easiest response to the follow-up question is, quite simply, “It’s just too long and confusing. Can you break it up for me?” That’s all. End of dialogue. “It’s just too long.”

3. The Obstinate Child

You’ve seen this child: in the corner, stamping his feet in frustration, screaming “No, no, no I won’t!” Here is the lawyer version: the questioner asks a bad question, the witness says, “Please rephrase the question,” and the questioner says, “No, that’s the best I can do,” or “No, I think it’s straightforward.” Sadly, I read transcripts all the time where unprepared witnesses obviously think, “If that’s the best he can do, I guess I have to answer it!” No! If that’s the best he can do, too bad! It’s the witness’s testimony, not the lawyer’s. Questions have to be clear and fair to the witness, not the questioner. Here, the questioner has done nothing to fix the problem with the question. Don’t answer it! Just say, “I’m sorry I still don’t understand. Why don’t you ask another question?”

The great Spanish novelist, Miguel de Cervantes, said, “Forewarned, Forearmed; to be prepared is half the victory.” The more a witness knows what’s coming, the better they are able to deal with it. Teach the discipline and the response.

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"

This article is the seventh 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).
To comment on this article, click here.