Rule #1: Take your time.
by Daniel I. Small
If the old saying is true — that he who writes the rules wins the game — then the first rule for any witness is to take your time. This is the rule from which all else flows. There are no shortcuts. The faster you try to go, the longer it will take; the harder you try to move things along and “be helpful,” the harder it will be.
Question, answer, question, answer. Like a volley in tennis, the faster it goes, the sooner someone will make a mistake. But in tennis, whoever makes the first mistake loses the point. In testimony, if the questioner makes the first mistake, it matters little. If the witness makes the first mistake, it lives forever: under oath and duly recorded. What could be more grotesquely unfair? The first way to lessen that unfairness is to slow down.
When I tell witnesses to slow down, I often get three reactions: First, “it’s hard to do.” Second, “it will look bad.” Third, “it will make my testimony take longer.”
“It’s Hard To Do”
Yes, it is hard to do. Normal conversation is fast-paced and free-flowing. We interrupt each other, finish each other’s sentences, go where we think others want to go, everything that is inappropriate and dangerous as a witness. Slowing down is uncomfortable and unnatural, so we have to do it almost mechanically.
Right from the first question, repeat the question silently to yourself, or simply pause and silently count out a good five seconds after every question before answering. Don’t wait until the middle of the testimony to do this — it will be much harder. Remember, it’s your oath and your testimony: You should control the pace. The written record looks the same whether you take a minute or a second to formulate your answer, but your answer will be better for the extra thought.
It will keep you from feeling rushed. People in a hurry make mistakes.
It will give you time to listen with the intensity and thought required to make sure you really understand the question — the entire question.
It allows you to be careful and disciplined enough to think about the best, most truthful, most precise answer. Often the “first thing that pops into your head” is the last thing you want to have pop out of your mouth.
It will give your lawyer time to speak or object, if appropriate.
“It Will Look Bad”
People sometimes worry that if they take their time, this will make a bad impression on the judge or jury. In my many years as a litigator, I have never heard this from a juror or a judge; only from lawyers. Everyone else in the courtroom understands the importance of testimony. As long as “taking your time” is done consistently, from the very first question and for the right reasons.
Several years ago, I represented a contractor called to testify before a federal grand jury investigating a developer for fraudulent practices. When I met with him to prepare, it was clear that he liked to talk, and he talked too fast for a good witness. With preparation, he finally understood the significance of taking his time before responding. He went into the grand jury room. Since the lawyer for the witness is not allowed in the room, I had to wait outside.
Some time later, I was able to see a transcript of his testimony and, to my pleasant surprise, I could clearly sense that he was going slowly and deliberately. You could also sense the growing frustration of the questioner, who wasn’t getting the snappy, sloppy answers that he wanted. Halfway into the testimony, the questioner said, with obvious frustration, “I’ve noticed that you’re pausing after each question. Is there a reason why you’re doing something like that?” My witness responded, “Because this is the most important thing I’ve ever done and I want to give you the most accurate answer that I possibly can.”
“It Will Make It Take Longer”
The first response is, “So what?” This is important; if it takes a little longer to do it properly that is time well spent. The second response, though, is equally important. As in so many other ways, being a witness is unnatural and counterintuitive. In many situations, the reality is that the slower the witness goes, the sooner his or her deposition or other testimony will be over. Why? Lots of reasons, but most often it is because the questioning lawyer is not really seeking carefully considered responses to questions. They are fishing for the quick hit, the sound bite, the sloppy answer, the mistake. Once they realize they are facing a careful, disciplined witness, they lose interest.
Taking control as a witness does not necessarily mean anything adversarial or unpleasant. On the contrary, you will generally want to avoid being too biased or one-sided. What it does mean is understanding that your role as a witness requires taking the time to make sure that you do it right, whether or not that results in a pace that someone else considers too slow. Take your time.
Dan Small
This article has been written for
The Professional Education Group by Daniel I. Small.
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