YourABA: November 2012
YourABA October 2012 Masthead

The ‘5 finger’ method of witness training

The five fingers on one hand can be a teaching tool for first-time witnesses, says H. Thomas Wells Jr., a partner at Maynard, Cooper & Gale PC in Birmingham, Ala. Each digit, starting with the pointer finger for No. 1, stands for a rule, he says.

“The rules are really no more than common sense, but I think it helps to have a visual reminder,” says Wells, who notes that he has used this system for 25 years.

In a Sound Advice podcast for the Section of Litigation, Wells, ABA president from 2008 to 2009, shared his five rules:

  1. Listen to the question. “You have to know what the person is asking before you can answer,” he says.

  2. Make sure you understand the question. You always have the opportunity to ask for clarification, Wells says. “The question may well be confusing; it may be compound,” he says.

  3. Think a minute before you answer the question. “This works a lot better when video is not being taken at the deposition,” Wells says. “You don’t want in a video deposition for someone to lean back and look at the ceiling for a minute and a half before they answer the question. But in a nonvideo deposition, the transcript will show, line one: question, line two: answer. It will not show a 30-second pause between line one and line two.

    “It’s important to think about your answer simply because of the common-sense notion that sometimes how you say something can be as important or perhaps more important than what you say,” Wells adds.

  4. Answer the question. “If the person asks you what time it is, don’t start by telling them how to build a watch,” Wells says. “Simply answer the question. That doesn’t mean you have to be short. That doesn’t mean you have to be ‘yes’ or ‘no.’ It means you answer the question.”

  5. Shut up. “It’s amazing how many people will answer a question, and the questioner will simply look at them, and sometimes that means they’ll just have to keep talking,” Wells says. “It’s what I refer to as disc-jockey syndrome. On the radio, the worst thing for a disc jockey is dead air. Some witnesses have disc-jockey syndrome. They can’t stand it when the questioner is simply looking at them and nothing is going on.”

“I always use the thumb” to represent No. 5, he adds. “If a witness starts getting my thumb in a deposition, it means they violated rule No. 5.”

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