Witnesses, Make This Your North Star: The Best Answer the Facts Allow

Holland & Hart - Your Trial Message

Holland & Hart - Your Trial Message

When it comes to witness goals in deposition or in trial, I think there are many useful perspectives. But looking at the range of possible advice, I think there are two bad ends of the spectrum. On one end, there is woodshedding. Despite ethical considerations, attorneys can be swayed by a “Here’s what you need to say…” approach (or its close cousin, the attorney saying, “You ask me the question, and listen to how I respond”). That’s not going to necessarily lead to truthful testimony. But even putting ethics aside, it can also be dramatically ineffective. There is no faster or surer way to remove confidence from a witness than to suggest that they don’t know what to say, but you do. For that reason, and in the interests of truth, you shouldn’t woodshed. But at the other end of the spectrum there’s a perspective that says, “It doesn’t matter how you say it if you just tell the truth,” and that can be just as bad. Of course the truth is paramount. Still, we know that in human communication, there are many ways to say the same thing, and some are better and some are worse. Yes, witnesses need to tell the truth, but with the framing, the emphasis, and the selection that displays a sensitivity toward the situation, the audience, and the goals of opposing counsel.

The happy medium between “Repeat after me” and “Just tell the truth using the first words that come to mind” is to provide the best answer the facts allow. I like that phrase, the best answer the facts allow. I will sometimes emphasize the acronym, “BAFA,” just to make that concept sticky with witnesses during preparation. It is a succinct way to emphasize that a.) We don’t ever want them to go outside what the facts allow because that’s where they get burned and surrender the one thing every witness needs: credibility; and b.) We also want the answers to be as clear, as effective, and as persuasive as they can reasonably be under the circumstances. We need it to be true and also need it to be sensitive to the situation and the adversary’s purpose. In this post, I’ll share two key ideas for making that happen during your witness preparation sessions.


Teach Through Practice, Not Direction 

Witnesses get more comfortable and familiar with the act of testifying by doing it. They learn by practicing, not by hearing a huge list of do’s and don’ts, and also not by hearing their attorney’s theory of the case and thereby absorbing what the best answers must be. So set up your witness preparation sessions in a way that will empower the witness to answer questions, but also to receive guidance. In my experience, that does require some discussion of the theory of the case at the front end, and it does require at least a short-list of do’s and don’ts. But the bulk of the meeting — I’d say 80 percent at least — should be reserved for mock testimony with feedback.

Follow an “Answer, Feedback, Answer Again” Style 

For most witnesses, I think it makes sense to work from the premise that they know the answers, they just may not know all of the situational constraints. So a good sequence is to ask the question of them fresh, without pointing them toward a preferred response, let them answer, then give feedback and answer again. Some good lead-ins for feedback might include:

    • Here is what the other side might do with that answer…
    • Here is where I’m having trouble making sense of that…
    • Here is how a juror hearing that answer could reach the wrong conclusion…

Ultimately, the goal is to move the witness in the direction of what communication scholars call “rhetorical sensitivity,” which is a skill that entails a willingness and appreciation for the need to modify communication approach based on the situation and the audience. For a witness, it means being savvy to what opposing counsel is trying to do, and savvy to what a jury looks for and needs. Highly experienced trial lawyers are likely to have that trait in spades, but witnesses, particularly those who haven’t yet had much experience, are likely going to need to develop that over time. One starting principle for those witnesses is to aim toward the best answer the facts allow.

Image credit: Shutterstock, used under license

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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